The defendant costs specialists

Posts by Simon Gibbs

Additional work and proportionality

By on Jul 20, 2018 | 0 comments

The Senior Costs Judge Master Gordon-Saker prefaced his recent decision on proportionality, in Various Claimants (In Wave 1 of the Mirror Newspapers Hacking Litigation) v MGN Ltd [2018] EWHC B13 (Costs), with the warning: “this judgment should not be taken as any attempt at providing guidance. I say that because I know that anything said about proportionality, at whatever judicial level, is subjected to anxious scrutiny. First this is not a judgment of the Court of Appeal. Secondly the circumstances which give rise to this judgment are very unusual.” That said, the decision does highlight one aspect of the proportionality test that merits consideration. Of the various factors the Court must take into account when considering proportionality is: “any additional work generated by the conduct of the paying party” The Master summarised his conclusions as follows: “62. Contrary to the Claimants’ submission, it seems to me that the conduct relied on must be conduct in the litigation rather than the conduct which gave rise to the cause of action. The conduct which caused the wrong will be compensated in damages or other relief. In my view the purpose of r.44.3(5)(d) is to enable the court to take into account that the costs may have been increased because work which would not ordinarily have been required has been required by the way in which the opponent has fought the claim. 63. It also seems to me that the conduct relied on does not need to be misconduct. Had that been intended misconduct could easily have been substituted in the rule for conduct. 64. In the event in my judgment there was no additional work caused by the conduct of the Defendant. That the Defendant chose to deny liability until 6 months before trial did not cause additional work. It caused the claim and the work involved in the claim. If a failure to concede by the party who eventually loses is considered of itself to cause additional work, this factor would apply in every case which did not settle within the relevant pre-action protocol period. 65. The Defendant fought these claims vigorously and did not concede liability at the earliest opportunity. As a consequence it will have to pay a greater...

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Hourly rates for personal injury work

By on Jul 16, 2018 | 3 comments

Although those working in legal costs tend to get very excited about the latest obscure technical challenge, it is the routine areas of dispute that have the greatest impact on the largest number of cases.  A costs judge allowing an hourly rate of 20% more or less than anticipated will usually completely throw any offers made. One of the particular problem areas surrounding costs law has always been the issue of what hourly rates are appropriate for solicitors undertaking personal injury work who are based in the geographical location which is termed “City of London” (ie postcodes beginning EC1, EC2, EC3 and EC4). The starting point (despite what some maintain) is always to look at the Guideline Hourly Rates for summary assessment.  The last published rates (2010) for Grade A fee earners gave the following for different bands: City of London                                   £409 Central London                                 £317 Outer London                                    £229-267 Band 1 (eg Manchester Central)    £217 Band 2/3 (eg Luton)                        £198 (The explanation given for the range of figures for Outer London is that “these ranges go some way towards reflecting the wide range of work types transacted in these areas”.) It can immediately be seen that there is a vast difference between the Guideline Rates for City and Band 2.  Some of this difference will be due to the average differences in overheads (principally dictated by property prices/rent and wages), but this clearly does not begin to explain the full difference. The answer was to be found as far back as Senior Costs Judge Master Hurst’s decision in King v Telegraph Group Ltd [2005] EWHC 90015 (Costs): “City rates for City solicitors are recoverable where the City solicitor is undertaking City work, which is normally heavy commercial or corporate work.” Although this answers the question as to whether City rates should automatically be applied to personal injury work undertaken by firms based in the City, it does take the matter much further as to what rate...

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Costs & Fees Encyclopaedia 2018-19

By on Jun 27, 2018 | 0 comments

The Costs & Fees Encyclopaedia continues to expand year-by-year and the 2018-19 Edition runs to 551 pages.  (It rather optimistically describes itself as “portable” and suitable for a briefcase.  It is plainly a desktop reference guide.) Pages 1-96 consist of the relevant costs provisions of the CPR and Practice Directions. Pages 97-102 provides J-Code “cheat sheets”. Pages 103-104 deals with fixed costs for solicitors and public authority deputies in Court of Protection work. Pages 105-106 contain the Guideline Hourly Rates for Summary Assessment. Pages 107-121 consist of the Civil Legal Aid (Remuneration) Rates: Extracts from the Civil Legal Aid (Remuneration) Regulations 2013. Pages 125-223 deals with Costs in Criminal Proceedings and includes: Extract from National Taxing Team Guidelines Extracts from the Criminal Legal Aid (Remuneration) Regulations 2013 Criminal Defence Service (Very High Cost Cases) (Funding) Witness Allowances in Criminal Proceedings Criminal Procedure Rules 2015, Part 45: Costs Costs Out of Central Funds Inter Partes Costs in Criminal Proceedings Practice Direction (Costs in Criminal Proceedings) 2015 Pages 225-226 includes Motor Mileage rates, VAT rates and IPT rates. Pages 229-436 covers an electric mix including: Civil Proceedings Fees Order 2008 Conditional Fee Agreements Order 2013 Consular Fees Order 2012 Coroners Allowances, Fees and Expenses Regulations 2013 Court of Protection Fees Order 2007 Crown Office Fees Order 2013 Damages-Based Agreement Regulations 2013 Ecclesiastical Judges, Legal Officers and Others (Fees) Order 2017 Family Proceedings Fees Order 2008 First-tier Tribunal (Immigration and Asylum Chamber) Fees Order 2011 First-tier Tribunal (Property Chamber) Fees Order 2013 Gender Recognition (Application Fees) Order 2006 Immigration and Nationality (Cost Recovery Fees) Regulations 2014 Immigration and Nationality (Fees) Order 2016 Immigration and Nationality (Fees) Regulations 2018 Insolvency Proceedings (Fees) Order 2016 Insolvency Practitioners and Insolvency Services Account (Fees) Order 2003 Land Charges Fees Rules 1990 Land Registration Fee Order 2013 Legal Officers (Annual Fees) Order 2017 Legal Services Act 2007 (Claims Management Complaints) (Fees) Regulations 2014 Magistrates Courts Fees Order 2008 Non-Contentious Probate Fees Order 2004 Oath Fees Order Offers to Settle in Civil Proceedings Order 2013 Public Guardian (Fees etc) Regulations 2007 Public Record Office (Fees) Regulations 2017 Supreme Court Fees Order 2009 Upper Tribunal (Lands Chamber) Fees Order 2009 Pages 451-520 contain various case summaries from Costs Law Reports divided by topic. ...

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Naming wrong defendant in CFA

By on Jun 25, 2018 | 0 comments

One of the long running battle grounds in costs litigation concerns the consequences of naming the wrong opponent in a conditional fee agreement.  Because this is ultimately a contractual issue, it remains just as relevant today as under the now revoked Conditional Fee Agreement Regulations.  Paying parties argue that no costs are recoverable where the incorrect opponent is named in the CFA.  I have argued the point both successfully (Hailey v Assurance Mutuelle des Motards) and unsuccessfully (Brierley v Prescott). In Engeham v London and Quadrant Housing Trust & Another [2015] EWCA Civ 1530 the Court of Appeal, without hearing argument on the issue, accepted that costs could not be recovered from a party different to the one named in the CFA. The Court of Appeal has now revisited the issue in Malone v Birmingham Community NHS Trust [2018] EWCA Civ 1376.  Here, the CFA stated, under the heading “What is covered by this agreement”: “All work conducted on your behalf following your instructions provided on [sic] regarding your claim against Home Office for damages for personal injury suffered in 2010.” In the event, the claim succeeded against Birmingham Community NHS Trust, rather than the Home Office.  At first instance and on the initial appeal, the Defendant successfully argued no costs were payable.  On the facts of the case, the Court of Appeal allowed the appeal.  The Court accepted that the reference to “Home Office” was descriptive of the instructions received rather than of the work to be done. It related to past instructions rather than future work. Although the Claimant was successful on the particular facts of the case, the decision does little to stop challenges in very similar situations.  The Court of Appeal’s commentary on HHJ Stewart QC’s decision in Law v Liverpool City Council [2005] EWHC 90020 (Costs) is as important as the Malone decision itself: “In that case the CFA was stated to cover: ‘Your claim against Liverpool City Council for damages for personal injury suffered on 26th March 2003’. Proceedings were brought against the Council as the occupier of the property where the injury was suffered and a defence was served. Subsequently the Council stated that the property had been transferred shortly prior to the accident to a housing...

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Serving an electronic bill of costs

By on Apr 13, 2018 | 4 comments

We now have compulsory electronic bills of costs.  What we do not have are up to date rules relating to service. PD 47 para.5.A4, dealing with transitional provisional provisions, makes it clear that the new electronic bill must itself must be served: “Where a bill of costs otherwise falls within paragraph 5.1(a) but work was done both before and after the Transition Date, 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.” Although the balance of the rules could be much clear, it is clearly the case that this will apply to all bills that are electronic (ie it is the electronic bill itself that must be served). The difficulty that arises is that the Practice Direction 6A, that deals with service generally, is very restrictive when it comes to electronic service. “4.1  Subject to the provisions of rule 6.23(5) and (6), where a document is to be served by fax or other electronic means – (1) the party who is to be served or the solicitor acting for that party must previously have indicated in writing to the party serving – (a) that the party to be served or the solicitor is willing to accept service by fax or other electronic means; and (b) the fax number, e-mail address or other electronic identification to which it must be sent; and (2) the following are to be taken as sufficient written indications for the purposes of paragraph 4.1(1) – (a) a fax number set out on the writing paper of the solicitor acting for the party to be served; (b) an e-mail address set out on the writing paper of the solicitor acting for the party to be served but only where it is stated that the e-mail address may be used for service; or (c) a fax number, e-mail address or electronic identification set out on a statement of case or a response to a claim filed with the court.  4.2  Where a party intends to serve a document by electronic means (other than by fax) that party must...

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