The defendant costs specialists

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How detailed should Points of Dispute be?

By on Jan 6, 2016 | 15 comments

I am always rather mystified when I receive Replies that contain a preamble along the following lines: “Many of the Defendant’s points of dispute do not comply with the costs practice direction as they do not state concisely (or at all in some cases) the nature and grounds of the dispute. The Defendant has chosen, in many cases, to either offer no reason for the proposed reduction or just state that the claim is ‘excessive’. CPR Part 47.9 CPD 8.2(d) states – 8.2 Points of dispute must be short and to the point. They must follow Precedent G in the Schedule of Costs Precedents annexed to the Practice Direction, so far as practicable. They must – (b) identify specific points, stating concisely the nature and grounds of dispute. The Claimant submits that where the Defendant has failed to state the nature and grounds of their dispute then that dispute should be struck out and the item(s) allowed in full.” If I understand the point being taken, it is being suggested that a Dispute that simply states the number of communications claimed, hourly rate, disbursement, time claimed, etc, is “excessive” without further detail or explanation is non-compliant with the Practice Direction. Now, it is no doubt possible that where, for example, 10 routine communications are being claimed to obtain a single set of GP records that instead of a dispute reading: “Excessive. Reduce to 3”, this could be elaborated on: “The Defendant respectively submits that the 10 routine communications claimed to obtain a single set of medical records is unreasonably high and disproportionate and that a competent litigator acting with all due skill and alacrity should have been able to obtain the same without the need to undertake this level of communications. To the extent to which this level of communications has been undertaken, this implies a number of chase-up communications (responsibility for which should not fall on the shoulders of the paying party on an inter partes assessment) or are of a non-fee earner, purely administrative nature. The Defendant submits a reasonable allowance would be 3 routine communications. The Court is reminded that this is a standard basis assessment and by virtue of CPR 44.3(2)(b) when assessing costs the...

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When should interest run on costs?

By on Jan 4, 2016 | 6 comments

Interest on costs usually runs from the date of the order for costs. CPR 47.7 provides that detailed assessment proceedings should be commenced within 3 months of the final order/judgment. CPR 47.8 provides that where a receiving party fails to commence detailed assessment proceedings within the period specified, the paying party may apply for an order requiring the receiving party to commence detailed assessment proceedings within such time as the court may specify. By virtue of CPR 47.8 (3), if the paying party has not made such an application and the receiving party commences detailed assessment proceedings late, the court may disallow all or part of the interest otherwise payable to the receiving party but will not impose any other sanction. I would suggest it has therefore been generally accepted that a receiving party will have a three month period to commence detailed assessment proceedings and will recover interest for that three month period in any event. If they commence detailed assessment proceedings after three months, the court may will disallow interest for the period of any subsequent delay. Given interest currently runs at 8%, for firms with a good cash-flow there is a positive incentive to delay commencement until the end of the three month period and it is certainly common to see some firms delay until very close to the three month period before providing details of their costs. The decision of Mr Justice Leggatt in Involnert Management Inc v Aprilgrange Limited & Ors [2015] EWHC 2834 (Comm) is therefore a potentially important development. As with all such decisions, the full judgment should be read to properly appreciate the reasoning and specific facts of the case but, in essence, he held that it would be unreasonable to order interest to run until the paying party knows what costs are being claimed and has had a reasonable opportunity to consider what sums are properly payable. He therefore ruled that interest should start to run from three months after the order for costs. In summary: “it seems to me that a reasonable objective benchmark to take is the period prescribed by the rules of court for commencing detailed assessment proceedings. Pursuant to CPR 47.7, where an order is made...

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Christmas Cocktail

By on Dec 21, 2015 | 2 comments

My recommended cocktail for the holiday season is a variation of the Boulevardier cocktail from Harry McElhone’s 1927 book Barflies and Cocktails. (Not this didn’t stop Nigella Lawson appearing to take credit for inventing the same in her recent Christmas TV special and renaming it the Kansas City Christmas). My variation adds mulling syrup to give it a real Christmassy feel. 1. Take one and a half measures of bourbon, one measure of Campari, one measure of sweet (rosso) vermouth and half a measure of mulling syrup. 2. Stir with ice and strain into a chilled martini glass. 3. Drink. 4. Repeat as necessary. I think I’ll call it the Winter Jackson...

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Structure of points of dispute

By on Dec 16, 2015 | 1 comment

It is, perhaps, a moot point as to whether a dispute relating to, say, recoverability of a success fee or ATE premium is a matter of principle. The relevance of this is that PD 47 para.8.2 states: “Points of dispute must be short and to the point. They must follow Precedent G in the Schedule of Costs Precedents annexed to this Practice Direction, so far as practicable. They must: (a) identify any general points or matters of principle which require decision before the individual items in the bill are addressed” Nevertheless, costs barrister Margaret McDonald, writing in Costs Lawyer magazine, makes the useful observation in relation to provisional assessment: “One of the difficulties is that items such as additional liabilities are often at the end of Form G, when the judge is almost out of time and does not have the time that might be necessary to consider the detail and nuances of technical breaches of the mandatory provisions contained in the old costs practice directions. Think about the order and structure of the points of dispute. Put your best points and ‘big ticket’ items...

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