The defendant costs specialists

Posts made in March, 2019

Massive extension of fixed costs announced

By on Mar 29, 2019 | 2 comments

The Ministry of Justice (MoJ) has announced its intention to implement Sir Rupert Jackson’s proposals for extending fixed recoverable costs to most cases worth up to £100,000. However, rather than introducing a new intermediate track for cases worth £25,000 to £100,000, as Sir Rupert had suggested, it proposes extending the fast-track to claims worth up to £100,000. The MoJ has accepted the fixed costs figures set out in the grid proposed by Sir Rupert in his 2017 report: “Sir Rupert consulted with his team of 14 assessors, drawing on a breadth of views and experience, and brought his own expertise to bear in finalising the figures. As such, we consider that the figures have been devised with appropriate rigour and intend to implement them as he recommends.” The MoJ has proposed an uplift of 35% on the fixed costs figure where a party succeeds on a Part 36 offer.  This will replace an order for costs on the indemnity basis. The intention is to make the extended fixed costs regime more watertight and thereby make escaping it harder.  This will clearly require careful drafting. In the event there remains a dispute as to the costs payable, and the matter has not gone to trial with the costs being summarily assessed, there will be a shortened form of detailed assessment, with a provisional assessment fee cap of £500. If that was not enough, the MoJ has stated: “It remains our intention to extend the areas in which costs are controlled in due course: such an extension could include extending FRC to further categories of claims, including claims of higher value, and controlling costs incurred before the first costs and case management conference, where cases are not otherwise subject to FRC.” The matter is now out for Consultation, with closing dates for submissions by 6 June 2019....

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New Statement of Costs for Summary Assessment pilot

By on Mar 25, 2019 | 0 comments

A new pilot scheme starts on 1 April 2019 for a new Statement of Costs for Summary Assessment. The pilot: Will run from 1 April 2019 to 31 March 2021. Applies to all claims, regardless of when “commenced” (presumably meaning when issued), that are subject to summary assessment. The two new forms that have been designed “may” be used during the pilot. It is therefore clear that use of the new forms is voluntary (although there does not appear to be anything to prevent a judge from making a case management decision requiring the use of the new forms). Form N260A is designed for interim applications.  Form N260B is designed for matters that have proceeded to trial. Both forms require detailed document schedules.  These “may” be created from electronic time records. Both forms are available in paper/pdf form and in electronic spreadsheet form.  Parties are free to use the paper/pdf version only. Where the claim is subject to a costs management order, any party filing the N260B in advance of the trial must also file a Precedent Q (which shows a summary of the costs claimed compared to the last approved/agreed budget).  Given summary assessment at trial is normally reserved for fast track matters, where there is no costs budgeting, it is not immediately obvious to me when this would occur.  (The separate Capped Costs List pilot scheme provides for summary assessment at the end of trials limited to two days but expressly states costs management does not apply.) For firms that are 100% confident that their fee earners are properly time recording by phase, activity, etc, there might be some time saving in preparing statements of costs using the new forms and inputting the data directly from case management software, but I suspect the overall take up will be extremely low during the...

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GDPR and medical records

By on Mar 20, 2019 | 0 comments

I recently looked at the case of Beardmore v Lancashire County Council where the court allowed recovery of medical agency fees (limited to £30 in addition to the direct costs) for obtaining medical records in an EL/PL Portal claim. These records were presumably obtained by the medial agency from the GP/hospital under the Data Protection (Subject Access) (Fees and Miscellaneous Provisions) Regulations 2000 which prescribe a maximum fee by the holder of the medical records of £50 to include photocopying and postage for access to medical records. The judgment in that case made no reference to the General Data Protection Regulation (GDPR), presumably because the records were obtained before this regulation came into force (on 25 May 2018). Less than two weeks ago the Information Commissioner’s Office (ICO) posted a blog advising that it was reasonable for solicitors to use GDPR to obtain clients’ medical records.  The GDPR provides that the holder of medical records must process a request for such records free of charge and within one month. If solicitors can obtain medical records free of charge relying on GDPR, it is difficult to see how a decision could be justified to instead make the request under the Data Protection (Subject Access) (Fees and Miscellaneous Provisions) Regulations 2000 and incur a fee in the process. If that is correct, there should, in future, be no claims by claimants for the direct costs of obtaining medical records in personal injury claims. This, in turn, raises the question of whether the continued use of medical agencies for this task is justified.  It might be argued that in non-fixed fee cases a medical agency can obtain the records more cheaply (at, say, £30) than if the fee earner undertook the task.  It is less easy to see how this would continue to be justified in fixed fee cases where the medical agency work is clearly undertaking work that is of a fee earner nature. Put another way, in Beardmore the judge concluded that the “appropriate measure for the disbursement recovery is the reasonable and proportionate cost of obtaining the medical records”.  If the records can be obtained free of charge by the solicitors using GDPR, what justification is there for incurring any...

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Cost of obtaining medical records in EL/PL Portal claims

By on Mar 18, 2019 | 0 comments

In Beardmore v Lancashire County Council (County Court at Liverpool, 1/2/19), His Honour Judge Graham Wood QC allowed the claimant to recover medical agency fees incurred in obtaining medical records in an EL/PL Portal claim despite the fact there is no express allowance for this in the CPR, unlike the RTA Portal rules. A medical agency had been instructed to obtain the claimant’s medical records.  The direct costs were £50 for the hospital notes and £10 for the GP notes. With a profit element on top, the claimant sought £96 including VAT in relation to each. The defendant had argued that only the direct costs were recoverable. The RTA Portal rules makes specific provision for the recovery of the medical agency fee as a disbursement of up to £30 on top of the direct costs (CPR 45.29I (2A)(c)). HHJ Wood concluded: “CPR 45.29I (2) allows for the recovery of a medical agency fee in this public liability case as a disbursement, and it is not excluded by the specific reference to the maximum recovery for the medical agency fee in RTA claims. In a public liability case, in my judgment, the appropriate measure for the disbursement recovery is the reasonable and proportionate cost of obtaining the medical records”. In the absence of any evidence as to how the £96 figure had been arrived at, HHJ Wood allowed the same amounts as would have been recovered in an RTA Portal matter (ie the direct cost of obtaining the records plus £30 per set plus...

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