The defendant costs specialists

Posts by Simon Gibbs

Part 36 clauses in CFAs

By on Jun 26, 2019 | 0 comments

The Law Society Model Conditional Fee Agreement contains the following clause: “It may be that your opponent makes a formal offer to settle your claim which you reject on our advice, and your claim for damages goes ahead to trial where you recover damages that are less than that offer. If this happens, we will [not add our success fee to the basic charges] [not claim any costs] for the work done after we received notice of the offer or payment.” The section in bold gives an either/or option as to the relevant consequence if the offer is not beaten.  The vast majority of claimant solicitors’ CFAs that I have seen have a similar clause. This clause is contractual in nature and therefore, if the “not claim any costs” option is taken, also impacts on the indemnity principle. This would not be a problem, subject to what I say below, for claimant lawyers if the normal costs consequences of CPR 36.17 were automatic (ie the claimant cannot recover costs from the date on which the relevant period expired if an offer is not beaten).  But CPR 36.17 simply sets our the default position.  The consequences of failure to beat a defendant’s offer are not automatic as the court may order otherwise if “it considers it unjust” to apply the default position.  However, if this standard clause is used, the solicitors are unable to charge their client a success fee (at best, if the first option is chosen) or recover any costs from the client or the opponent (at worst, if the second option is chosen) from the date of receipt of the offer or payment, regardless of whether the court limits the period for which costs are recoverable. In any event, the wording of the clause itself is somewhat strange: It refers to “the work done after we received notice of the offer or payment”. CPR 36.17 anticipates that the trigger point will be “from the date on which the relevant period expired”.  The clause therefore also prevents recovery of either any costs or the success fee at least 21 days earlier than CPR 36.17 anticipates. It refers to “formal offer”, not “Part 36 offer”. It is therefore arguable...

Read More

Future of the legal costs industry

By on Jun 24, 2019 | 1 comment

I’ve uploaded an old article from September 2009 that made predictions on the future of the legal costs industry in light of the Preliminary Report from Lord Justice Jackson.  How many of these predictions were accurate?  First published in the Solicitors...

Read More

Why are legal costs so high?

By on May 30, 2019 | 1 comment

I’ve uploaded an old article from April 2011 that originally appeared Litigation Funding magazine.  This was written in response to research commissioned by the National Accident Helpline that formed part of their response to the original Jackson consultation process.  At the time, an article based on this report appeared in the Law Society Gazette, written by the National Accident Helpline.  The thrust of that article (and the research) was to try to justify the continued recoverability of success fees and ATE premiums on the basis that the true cause of high legal costs was delay/unreasonable behaviour by defendant insurers as opposed to recoverable additional liabilities.  In fact, what the research seemed to show was that success fees and ATE premiums were set at excessive levels in light of the very high success rate of claims.  In the event, the research made no difference and the Jackson proposals were...

Read More

Costs Lawyers delegating work

By on May 28, 2019 | 0 comments

The case of Allen v Brethertons LLP [2019] EWHC B3 (Costs) has received a fair amount of commentary in relation to the entitlement of non-Costs Lawyers to undertake certain “reserved activities”. Costs Judge Master Leonard had no difficulty accepting that where a costs draftsman prepared a bill of costs under the supervision and instruction of a Costs Lawyer, that, although bill preparation amounted to a “preparation of a reserved instrument” and was therefore a “reserved activity”, the costs draftsman became an “exempt person” in this situation and the costs of preparing the bill are recoverable in principle. Further, in relation to a costs draftsman attending a costs hearing: “The issue of his right to appear as an advocate on costs hearings has come up before. His case is probably on all fours with Kynaston v Carroll but it is in any event my practice, for the avoidance of doubt, to grant him a right of audience.  That was the basis upon which I heard him on 15 January.  He was, for the purposes of that hearing, an exempt person, and his costs of preparation for and attending that hearing are, insofar as reasonable and proportionate, recoverable.” The case of Kynaston was as far back as 2011 and it is surprising that the same tired arguments keep being re-run. Nevertheless, re-run it was and appears to have been, at least in part, inspired by (or at least support sought from) a guidance note published by the Costs Lawyers Standards Board (CLSB).  Master Leonard summarised the contents of that guidance as stating: “That guidance emphasises that the CLSB authorises and regulates individual costs lawyers, not authorised entities or licensed alternative business structures: and in consequence, that a Costs Lawyer cannot delegate reserved legal activities such as the exercise of a right of audience or the conduct of litigation.” The CLSB guidance note is titled Reserved Legal Activity Rights and was apparently published on 18 July 2018, although I do not recall the CLSB circulating it to Costs Layers.  It states: “This guidance has been written to clarify the authorised rights of a Costs Lawyer (as defined). It has been approved by specialist regulatory counsel, Gregory Treverton-Jones QC.” It is worth setting out in...

Read More