The defendant costs specialists

Posts by Simon Gibbs

Unlawful service by unregulated person

By on Jan 16, 2019 | 1 comment

In Ndole Assets Ltd v Designer M&E Services UK Ltd [2018] EWCA Civ 2865 the Court of Appeal was faced with the issue: “Is service of a claim form a reserved legal activity for the purposes of the Legal Services Act 2007 (the 2007 Act)? And if it is, does service of a claim form where carried out by a person who is not an authorised or exempt person for the purposes of the 2007 Act have the consequence that service is invalid and that the claim should be struck out?” On the facts of the case, CSD, referred to as “claims consultants”, purported to serve a claim form on behalf of a litigant in person.  It was not in dispute that CSD were not solicitors and were not authorised for the purposes of the 2007 Act to conduct litigation. Schedule 2 of the 2007 Act defines “conduct of litigation” as: “(a) the issuing of proceedings before any court in England and Wales, (b) the commencement, prosecution and defence of such proceedings, and (c) the performance of any ancillary functions in relation to such proceedings (such as entering appearances to actions).” The Court concluded that: “that service of the claim form was within the ambit of ‘conduct of litigation’. … I consider that service of the claim form is indeed an aspect of ‘prosecution… of such proceedings’ and at all events that service of the claim form is ‘an ancillary function in relation to such proceedings’.  As stated by the Court of Appeal in paragraph 56 of Agassi, it must have been intended that ‘ancillary functions’ would be formal steps required in the conduct of litigation. Service of the claim form is unquestionably, in my opinion, of such a kind. There are rules of court relating to it. A legal action cannot be progressed, cannot be prosecuted, unless and until the claim form is properly served, as the judge had noted. Service is the essential means by which a defendant is notified of the content of the court process which has been initiated against him and in respect of which he is ordinarily required to acknowledge service. Thus service of the claim form falls within the ambit of the statutory language,...

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Friston on Costs

By on Jan 9, 2019 | 2 comments

Shortly before Christmas the new edition of Friston on Costs landed on my doormat.  Obviously, I do not mean that literally.  They have yet to design a letterbox large enough for a book this size and, if you order online, the description has a two-person delivery symbol beside it to indicate the number needed to carry it. The first edition of this book, still less than 10 years old, ran to 1,245 pages ignoring the preface and contents pages.  This third edition comes in at 2,138 pages and now comes in a heavy cloth binding. Fortunately, this is not a case of “never mind the quality, feel the width”. Since the second edition was published (in 2012), the costs world has seen a continuous stream of new case law.  This is all seamlessly introduced into the new edition.  However, more importantly, the intervening period has also seen the introduction of the Jackson reforms.  This led to major changes to the cost rules, the introduction of entirely new areas of costs procedure (such as costs budgeting) and the inevitable explosion of further case law on the new procedures.  This new edition is therefore not simply a general update but is, in large part, a comprehensive rewrite. The overall scope of the book is an encyclopaedic as ever.  This will be the first port of call for research by all costs practitioners and costs judges.  (I have already found it indispensable to securing a win on a point of principle.)  No topic – however obscure – appears to have been overlooked. This latest addition includes more general commentary on costs law – from both the author and other legal commentators – than previous editions.  This is welcome.  The fact that there is generally only a finite amount of case law from the higher courts on costs law, combined with the fact that much of the Jackson reforms are still settling in, means that any guidance or thoughts from respected costs experts is to be warmly embraced. Unfortunately, advocates are unlikely to want to carry a copy of this book to court in addition to a copy of the White Book.  (Did I mention the size of Friston on Costs?)  Fortunately, the...

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Failure to serve electronic bill of costs

By on Dec 10, 2018 | 7 comments

PD 47 para.5.1 requires an electronic bill of costs for any work  undertaken after 6 April 2018 where the claim is a Part 7 multi-track claim. The Practice Direction contains no sanction for failing to comply with this requirement. CPR 44.11 provides:         “(1) The court may make an order under this rule where – (a) a party or that party’s legal representative, in connection with a summary or detailed assessment, fails to comply with a rule, practice direction or court order; … (2) Where paragraph (1) applies, the court may – (a) disallow all or part of the costs which are being assessed” There appear to be a number options open to the Court where there is a failure to comply with PD 47 para.5.1, including: Tutting and proceeding with the assessment regardless. Refusing to proceed with the assessment until a compliant electronic bill (and amended paper bill) is served/filed. Making an unless order requiring a compliant electronic bill (and amended paper bill) to be served/filed by a certain date failing which all costs will be disallowed. Disallowing any post-6 April 2018 work (which may not be straightforward where the bill does not clearly identity all such work). Making a percentage reduction to the bill (perhaps roughly reflecting the proportion of post-6 April 2018 work claimed). Disallowing all...

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Interim costs payment following acceptance of Part 36 offer

By on Nov 30, 2018 | 0 comments

I had anticipated that the case of Culliford & Anor v Thorpe [2018] EWHC 2532 (Ch) would be the last word we would hear on the subject of interim payments for costs.  In that case the court had to decide whether it had the power to order an interim costs payment after the original costs order had been made. The judge concluded: “In my judgment, it is not the law that, once an order for costs has been made, drawn up and sealed, no further application can be made to the court for an order for a payment of a sum on account of those costs. There is nothing in the rules which so requires, and there may be good reason why payment of the sum on account is not considered at the time the order was made. My decision in Ashman v Thomas [2016] EWHC 1810 (Ch) does not decide to the contrary. It was a case where the court was asked to revisit its order before it had been drawn up and entered. So it turned on the so-called Barrell jurisdiction. There was no need to decide what would have happened if the order had already been entered. Although CPR 44.2(8) contemplates that the court will decide this question at the time of making the order for costs, to my mind this does not exclude the possibility that the court should decide it later. I see no justification in the rules or authorities for the Claimants’ view that, if an application is not made at the time, the next opportunity arises only after detailed assessment proceedings have been commenced.” However, barely had the ink dried on that judgment before another decision on this topic has been reported (although the case was actually heard several months before Culliford). In Finnegan v Frank Spiers [2018] EWHC 3064 (Ch) the High Court ruled that the court has no power to order a payment of costs on account after a Part 36 offer has been accepted.  This is because Part 36 is a self-contained code and it makes no provision for payments on account following acceptance of a Part 36 offer. We now have two different principles governing interim payments on account: Where the...

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Senior Courts Costs Office Guide 2018

By on Nov 22, 2018 | 0 comments

The SCCO has published the updated Senior Courts Costs Office Guide 2018.  This is the first update since 2013. It provides a helpful summary of a number of procedural points.  It also provides a useful list of the current Regional Costs...

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