The defendant costs specialists

Posts by Simon Gibbs

Defective costs budgets

By on Oct 29, 2018 | 1 comment

The decision of Mr Justice Walker in Page v RGC Restaurants Ltd [2018] EWHC 2688 (QB) provides further important guidance on the costs budgeting process and is essential reading for those involved in costs budgeting. The underlying case was subject to costs budgeting.  The parties decided between themselves, without consulting the Court, that the budgets could be prepared on the basis that it was too soon to budget for trial preparation and trial costs.  The Claimant’s budget therefore included nothing for these phases. The main rule in issue was CPR 3.14: “Unless the court otherwise orders, any party which fails to file a budget despite being required to do so will be treated as having filed a budget comprising only the applicable court fees.” At the CCMC, the master concluded that the failure to serve a budget that included trial preparation and trial estimates amounted to a failure to file a budget that complied with the rules.  He decided that the consequence of this was that the CPR 3.14 sanction applied and made a costs management order limiting the Claimant’s budget accordingly (ie court fees only). On appeal, the master’s decision that there had been a failure to file a compliant budget was upheld.  However, the appeal judge ruled that the master should have gone on to consider whether to disapply the sanction (even in the absence of an application for relief from sanctions) as CPR 3.14 specially provides that the sanction applies “unless the court otherwise orders”.  The judge then applied the Denton principles to the issue of whether the court should have otherwise ordered and did so to the extent that the sanction would not be applied to those phases of the budget that had been properly completed and agreed by the Defendant.  However, the sanction would continue to apply in relation to the trial preparation and trial phases.  Given the matter had been listed for a five day trial, this represents a very serious sanction and is likely to cause a major loss to the Claimant’s solicitors (or possibly professional indemnity insurers) if the matter proceeds to trial. The obvious lesson from this decision is that it is not for parties to decide not to file...

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Timing of payments on account

By on Oct 17, 2018 | 0 comments

The Legal Costs Blog keeps being pulled back to the issue of the timing of orders for interim payments of costs between the parties.The current wording of the relevant rules is to be found at CPR 44.2(8): “Where the court orders a party to pay costs subject to detailed assessment, it will order that party to pay a reasonable sum on account of costs, unless there is good reason not to do so.” and CPR 47.16(1): “The court may at any time after the receiving party has filed a request for a detailed assessment hearing – (a) issue an interim costs certificate for such sum as it considers appropriate; or (b) amend or cancel an interim certificate.” This distinction between an order for a payment on account and an interim costs certificate has been around (with only minor variations) since the introduction of the Civil Procedure Rules.  It is therefore surprising that the extent of any tension between the two rules, if such exists, has remained unresolved for so long. I had always read the two rules to mean there were two stages at which such an order could be made: 1. At the same time an order for costs is being made (usually following a trial). 2. After a request has been filed for a detailed assessment hearing. If an order for a payment on account had not been made when the costs order was being made, the next opportunity to obtain an order for an interim payment would not arise until after a request for a detailed assessment hearing had been made.  This has been the view shared by the authors of Cook on Costs. The last time we looked at this issue was in the case of Ashman v Thomas [2016] EWHC 1810 (Ch) (19 July 2016). Chancery Master Matthews had given judgment and awarded costs to the defendant but not made an order for an interim payment.  Subsequently, when trying to agree the terms of the order, the parties fell out over an attempt by the defendant to include a term for a payment on account of costs, which the claimant objected to.  The matter was referred back to the Master for a decision to...

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Second fee earner attending conference

By on Sep 4, 2018 | 7 comments

Of the various costs building wheezes that some claimant firms engage in, having a second (or third) junior fee earner attend conferences with Counsel, to take notes, is one of the classics. When this issue arises at detailed assessment, I know at least one costs judge who confirms that, when he was a practising solicitor, he would often have a trainee solicitor attend conferences to take notes but would not dream of charging for this work as it was primarily for the benefit of the trainee as part of their training process.  It was not chargeable work. The usual justification advanced by claimant solicitors for having the junior fee earner attend to take a note is that this enables the main fee earner to properly engage in the conference itself.  This is predicated on the notion that a Grade A fee earner cannot be expected to both follow what is going on in the conference and also make a note of what is being said.  This, of course, is usually in the context of conferences that are largely Counsel led.  This argument tends to be rather undermined when it is being made to a costs judge at detailed assessment who is managing to keep a detailed contemporaneous note of the submissions being made, asking probing questions of the advocates as the matter progresses and able to make comprehensive ex tempore judgements on complex points of law at the drop of a hat.  But then, you cannot expect fee earners claiming up to £450 an hour to be able to walk and chew gum at the same time. If only the problem stopped there. I have had two recent cases where the time claimed by the junior fee earner writing up a note of the conference, in addition to the time claimed in attendance, massively exceeded the length of the conference itself. In one, a total of 3 hours 30 minutes was claimed drafting the note of a conference that only lasted 1 hour 12 minutes. In the other, a total of 6 hours was claimed by two fee earners preparing a conference attendance note of a conference that only lasted 3 hours 36 minutes. Unless the time is being...

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Most Outstanding Legal Costs Litigation Firm 2018 – London

By on Aug 8, 2018 | 0 comments

The first problem with the vanity legal awards industry is that they are often ridiculously wide in the nature of the awards they seek to distribute, to the extent to which the awards are meaningless (even if they were distributed on merit). For example, Wealth & Finance INTL magazine previously awarded Gibbs Wyatt Stone ‘Most Outstanding Law Firm of 2016, the UK’.  I would not argue with the outstanding nature of the work we undertake but modesty does call even me to question whether a niche costs firm can ever seriously be considered the best law firm in the whole country (even if only for 2016). Alternatively, they give “awards” that are not remotely appropriate to the firm in question (eg we have been offered “Asset Manager of the Year – North America”).  You might think they would take a little more trouble to find out what kind of a firm they are contacting before sending the email out. Fair play then to Acquisition International magazine for awarding Gibbs Wyatt Stone ‘Most Outstanding Legal Costs Litigation Firm 2018 – London’.  This at least shows they have the sense to consider the nature of the work undertaken by the firm before sending out a targeted email.  I am not sure it is sufficient to persuade me to sign up to one of their packages to promote winning this “prestigious” award, such as: The Exclusive Package – 1,450 GBP – (Limited spaces available) – Supporting image and headline on the front cover of the magazine – A 4-page editorial inclusion in the first 20 pages – 3 hard copies of the edition your inclusion appears in – Your inclusion replicated on the homepage of our website – Your inclusion in the monthly newsletter, for 3 months – A 3-month web banner – 3 bespoke crystal trophies – A personalized digital logo for use in your own marketing – High-resolution PDF copies of your inclusion These online only magazines are clearly not read by anybody (other than other reward recipients wanting to read their own self-written glowing testimonials).       It is clear from the contents of this magazine, by way of example only, that there are legal and financial firms across the...

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Court of Appeal guidance on proportionality

By on Aug 1, 2018 | 0 comments

In a speech given earlier in the year, Lord Justice Jackson recognised that the profession was becoming “impatient” for guidance on the proportionality test from the Court of Appeal.  He concluded: “The remedy lies in their own hands. The Court of Appeal can only decide the cases which come before it.” In May v Wavell Group Plc, an appeal at County Court level, a judge reached the questionable conclusion that the wording of the rule that reads: “Costs which are disproportionate in amount may be disallowed or reduced even if they were reasonably or necessarily incurred” should be interpreted to mean (I paraphrase here): “Costs which are disproportionate in amount may be disallowed or reduced even if they were reasonably or necessarily incurred but not by a very substantial amount” Unsurprisingly, permission was sought to appeal this to the Court of Appeal. The Court of Appeal refused permission. You couldn’t make it...

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