The defendant costs specialists

Posts by Simon Gibbs

Filing electronic bill of costs

By on Apr 6, 2018 | 6 comments

The new electronic bill of costs is now upon us and it already causing confusion at the most basic level. Costs Lawyer magazine reports ACL council member Claire Green, who has paid a key role in the development of the new bill and as been running the ACL’s training courses on the new bill, warning: “the new bill will ‘change the whole ethos and environment we’re working in’ and too many people seem unaware of what’s coming – as one small example, you now have to serve the bill on the court at the same time you serve it on the other party.” This would be a surprising development if true. Previously, detailed assessment proceedings were commenced by serving the bill on the paying party.  It was not, at that point, filed with the court.  Points of Dispute were served in response, but not filed.  Optional Replies were then served, but not filed.  It was only if, and when, a request was made to the court for detailed assessment that the various documents (and bill) were filed. It would therefore be odd if the rules had now been changed so that the courts were to be bombarded with 1000’s of bills (both hard copy and electronically) at a stage of the assessment process where they have no involvement or interest and where most matters will settle without the need for any input from the court. The problem is caused by the wording of PD 47 para.5.1A: “Whenever electronic bills are served or filed at the court, they must also be served or filed in hard copy, in a manageable paper format as shown in the pdf version of Precedent S.  A copy of the full electronic spreadsheet version must at the same time be provided to the paying party and filed at the court by e-mail or other electronic means.” The first sentence appears tolerably clear: When an electronic bill is served it must be served both electronically and in hard copy; and When an electronic bill is filed it must be filed both electronically and in hard copy. The second sentence is a clear as mud and is clearly the cause of the confusion. I believe the correct...

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Failure to file a Statement of Costs in advance of hearing

By on Mar 12, 2018 | 3 comments

Gordon Exall’s excellent Civil Litigation Brief has a post reporting the decision in Cross v Black Bull (Doncaster) Limited (Sheffield County Court) concerning the appropriate consequences of a party not serving a statement of costs at least 24 hours before a hearing. His Honour Judge Robinson summarised the issue thus: “Miss Buck who did not appear before me in the appeal nor did she appear before the Deputy District Judge submits on instructions that because a costs statement had not been filed at the hearing before the Deputy District Judge in accordance with the CPR namely, without looking it up and from memory 24 hours before the hearing, then summary assessment could not have occurred and therefore the claimant should be deprived of all of his costs. Now, I asked Miss Buck if there was anything by way of authority or principal or direction or anything that might assist me in determining the appropriateness of that costs direction. Namely the costs should be denied a successful claimant and as very fairly said no. Therefore, I am asked to exercise my discretion.” Exercising his discretion from first principles, he declined to disallow the costs. It is unfortunate that neither Miss Buck nor the judge (nor, presumably, the advocate for the other side) appeared to be aware of the actual wording of PD 44: “9.5(4) The statement of costs must be filed at court and copies of it must be served on any party against whom an order for payment of those costs is intended to be sought as soon as possible and in any event – (a) for a fast track trial, not less than 2 days before the trial; and (b) for all other hearings, not less than 24 hours before the time fixed for the hearing.  9.6 The failure by a party, without reasonable excuse, to comply with paragraph 9.5 will be taken into account by the court in deciding what order to make about the costs of the claim, hearing or application, and about the costs of any further hearing or detailed assessment hearing that may be necessary as a result of that failure.” It is also unfortunate that the judge, who was clearly aware there was a provision within...

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Electronic Bill of Costs

By on Feb 23, 2018 | 7 comments

The new electronic bill of costs becomes mandatory from 6 April 2018. The relevant transitional provisions state that where work was done both before and after 6 April 2018, a party may serve and file either a paper bill or an electronic bill in respect of work done before that date and must serve and file an electronic bill in respect of work done after that date. The new electronic bill is not required for all cases.  The circumstances in which bills of costs must be electronic bills are that— “(a) the case is a Part 7 multi-track claim, except— (i) for cases in which the proceedings are subject to fixed costs or scale costs; (ii) cases in which the receiving party is unrepresented; or (iii) where the court has otherwise ordered; and (b) the bills of costs relate to costs recoverable between the parties for work undertaken after 6 April 2018 (“the Transition Date”).” Fast-track cases are presumably excluded from the requirement to be in electronic format because: Those that are not already subject to fixed fees are likely to become so in the near future with the next wave of the Jackson reforms. The majority of bills in fast-track cases that are not already subject to fixed fees are likely to be relatively modest in amount meaning there would be little to be gained from insisting they are in electronic format. However, the wording of the rules clearly means that the relatively large number of higher value cases that settle pre-issue and the further relatively large number of cases that settle post-issue, but pre-allocation, are not required to be in electronic format (as they are not multi-track yet) and can continue to follow good old Precedent A.  I am not sure this is what was intended.  (Assuming the electronic bill is a good thing,) would it not have made more sense to include cases that settle pre-allocation but for an amount in excess of the fast-track limit within the category of claim for which an electronic bill was...

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Premature witness statements

By on Jan 23, 2018 | 5 comments

The recent decision of Master Leonard in Douglas v Ministry of Justice & Anor [2018] EWHC B2 (Costs) concerned the issue of the recoverability of the costs of attending an inquest. One particular comment made during the judgment has attracted attention: “... the cost of preparing witness evidence will normally be recoverable as part of the cost of a successful claim even if that claim settles before the witness evidence is ever needed.” Gordon Excall’s Civil Litigation Brief blog interpreted this as meaning: “This emphasises the point that there is nothing to lose (and everything to gain) by the careful and early collection of witness evidence.” It is no doubt correct that the mere fact a matter settles prior to witness statements being served will not of itself prevent recovery of the costs of obtaining them. However, I am not sure that Master Leonard sought to imply that the costs of obtaining witness statements would always be recoverable regardless of the stage of the claim they were obtained.  It is important to the see the context within which his comment was made: “one must not use hindsight in applying the Gibson principles. So, for example, the cost of preparing witness evidence will normally be recoverable as part of the cost of a successful claim even if that claim settles before the witness evidence is ever needed.” This is no more than pointing out that hindsight will not usually be applied when assessing costs.  The key issue remains as to whether obtaining witness evidence was reasonable at that point in time.  Obviously, each case is fact specific, but costs are routinely disallowed on detailed assessment on the basis they have been incurred prematurely. Friston’s Civil Costs correctly summaries the position: “Speaking of a costs regime long since passed, Lord Hanworth referred to the following extract from a Master’s certificate dealing with material thrown away: ‘We have always acted upon the principle that the costs of all work in preparing, briefing, or otherwise relating to affidavits or pleadings, reasonably and properly and not prematurely done, down to the time of any notice which stops the work, are allowable; and … the Taxing Master, having regard to the circumstances of each case, must decide whether...

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Requesting a detailed assessment hearing

By on Jan 19, 2018 | 1 comment

Two letters received from the Claimant’s solicitors, both dated 4 August 2017.  The first is a Part 36 offer.  The second attaches Replies and states: “We shall now be making a Request for a Detailed Assessment Hearing.” As the Part 36 offer was unacceptable in amount, I simply awaited receipt of a notice of hearing from the court.  (Given the date of the final costs order, a request for assessment needed to be filed by 13 October 2017 in any event.) By 14 November 2017, I had heard nothing further and so wrote to the other side asking them to confirm the date they had filed their request for assessment. The response received, dated 21 November 2017, read: “We did not receive a response to our Part 36 offer and was awaiting a response before incurring further costs by lodging the matter.  We assume that our Part 36 offer is rejected and are now taking instructions. We intend to lodge the matter for assessment by the end of the week.” Am I being overly legalistic to suggest that the original statement that “we shall now be making a Request for a Detailed Assessment Hearing” failed to adequately convey what was presumably the intended meaning: We currently have no instructions to request a hearing. We intend to take no further steps in this matter, including sending any chase-ups, until we hear further from you. Needless to say, I am still awaiting a hearing date....

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