13 August, 2014 at 6:09 am

Is Noise Induced Hearing Loss (NIHL) a disease?

Filed Under Legal Costs | 20 Comments 

Fixed success fees have been in place for “disease” claims since 1 October 2005. It is therefore surprising that it was not until 2012 that any serious consideration was given as to which claims fell within the scope of the fixed success fee regime (see Fountain v Volker Rail Limited, Bird v Meggit Aerospace Limited and Patterson v Ministry of Defence [2012] EWHC 2767 (QB)).

The leading case of Patterson concerned an unusual non-freezing cold injury. The area of real importance is whether Noise Induced Hearing Loss (NIHL) claims are disease claims for the purposes of the rules. Traditionally such claims have been viewed as “disease” claims. The problem arises because the rules themselves do not define “disease”.

There are currently a growing number of decisions at first instance where the courts have concluded that NIHL is not a “disease”, including Mansfield County, Sheffield County Court and Harrogate County Court. Although a binding decision is still awaited, there is an increasing wiliness by the judiciary to adopt a narrow interpretation to the word.

11 August, 2014 at 6:23 am

Guideline Hourly Rates Guidance

Filed Under Legal Costs | 5 Comments 

Despite the disappointment that no new Guideline Hourly Rates have been published, the recent review has finally killed off the argument that Guideline Hourly Rates are of no relevance to detailed assessment and are designed purely for summary assessments on the fast track.

The Costs Committee stated of the GHRs they are:

“primarily a guideline rate for summary assessments and a starting point for calculating rates in detailed assessments”

and:

“The GHR are themselves guidelines and a benchmark for summary assessments. As such, they may provide a helpful starting point in the detailed assessment process, but no more than that.”

The Master of the Rolls wrote:

“It is also important to emphasise the the guidelines were originally intended to be broad approximations of actual rates in the market.”

This is key, the GHRs are intended to reflect the rates that solicitors actually charge in different localities. They were never intended to reflect only what solicitors charge for fast-track litigation (£409 per hour anyone?). Much less was it ever suggested that solicitors charged their clients different hourly rates, for example, for interim hearings where the court dealt with the costs by way of summary assessment as opposed to deferring the matter to detailed assessment.

David Greene, a member of the CJC Costs Committee, writing in the New Law Journal stated:

“GHRs apply largely to fast track and multi track litigation outside the fixed costs regimes. … Further while GHRS were originally introduced to assist judges with summary assessment they had become the cornerstone for all assessment.”

The Master of the Rolls concluded:

“GHRs are needed to guide summary and detailed assessment of costs.”

They are a starting point for both. Nothing more, nothing less.

5 August, 2014 at 5:26 am

Grade B Costs Lawyers

Filed Under Legal Costs | 2 Comments 

A further interesting issue arises as to Costs Lawyers being potentially classified as Grade B fee earners (from October 2014). This is as a result of the wording used by Lord Dyson and in the original report recommendation.

To achieve Grade B status as a solicitor or Fellow of CILEX requires a combination of qualification (solicitor or Fellow of CILEX) and experience (over 4 years PQE).

Although we wait to see whether any further guidance will be published, the Costs Committee Report contained the following recommendation:

“The ACL provided evidence giving details on the qualification route, continuing professional development and regulatory framework for Costs Lawyers. The Committee agreed, and determined that the following approach should be adopted for those Costs Lawyers who are suitably qualified and subject to regulation under the Legal Services Act 2007 to undertake reserved legal activities:

(i) For budgeting and bill drafting, save in exceptional circumstances, Costs Lawyers should sit within the grades for Grade C and D fee earners;
(ii) For practising litigation and advocacy, save in exceptional circumstances, costs lawyers should sit within the grades for Grades C or B.”

Lord Dyson accepted the recommendation with these words:

“Costs Lawyers who are suitably qualified and subject to regulation be eligible for payment at GHR Grades C or B, depending on the complexity of the work”

Neither the Report nor Lord Dyson’s words make any comment on experience. Taken together it seems to suggest that a newly qualified Costs Lawyer could attract Grade B status for advocacy if the case was sufficiently complex.

It is, of course, important to recognise that there is a distinction between formal status and the rates that would be justified on assessment. A solicitor of 20 years PQE would clearly fall within Grade A status but would struggle to justify Grade A rates for dealing with a low value RTA. Equally, a non-qualified paralegal might fall firmly within Grade D status but be able to justify rates similar to a Grade A if they were punching considerably above their weight dealing skilfully with a complex clinical negligence claim.

The Report itself recognised this issue:

“The current situation is rather ambiguous; many Costs Lawyers will be bracketed for most work in Grade D, but the criteria for the grades is sufficiently flexible for Costs Lawyers to submit for fees at Grade C and occasionally Grade B where the complexity of the work and the experience/expertise to undertake the work warrants it.”

The strange result of the Report and Lord Dyson’s acceptance of this recommendation is that it appears to have blurred the lines between status (as a matter of definition) and what rates can be justified. It should be a matter of definition as to whether a Costs Lawyer is a Grade B, C or D. It should be a matter of argument as to what rates are reasonable. What we have to date appears to make status an entirely subjective test.

1 August, 2014 at 6:38 am

New Senior Costs Judge

Filed Under Legal Costs | 2 Comments 

Congratulations to Master Gordon-Saker who has been appointed as Senior Costs Judge with effect from the beginning of October.

He has timed this perfectly as the next couple of years should be a relatively calm period in the costs world and this will allow him to ease himself gently into the new role.

30 July, 2014 at 6:16 am

Costs Lawyer Grade C status

Filed Under Legal Costs | 14 Comments 

The recent decision of Lord Dyson to allow Costs Lawyers to potentially qualify as Grade C or Grade B fee earners raises an interesting issue.

What level of qualification and training is required for a Costs Lawyer to now potentially be classified as a Grade C fee earner?

A typical solicitor will have stayed at school until age 18, then undertaken a 3 year law degree, followed by a 1 year LPC full time course and then undertaken a two year training contract. At that stage they will be entitled to call themselves a Grade C fee earner. This is, post-age 16, a combination of 8 years full time education and training. During the 6 years of education they will have lost potential earnings. During the 4 years of a law degree and LPC will have incurred significant tuition fees. (For those undertaking a non-law degree there will be the further delay and cost of the CPE.) It is unlikely that Grade C status would be reached before the age of 24.

In contrast, the minimum academic qualifications to start the Costs Lawyer course is 4 GCSEs at grade C or above, English and Maths being compulsory. (Even this can be avoided if an aptitude test is passed.) The minimum age to start the course is 18. The Costs Lawyer course is designed to be undertaken whilst students are in full time employment. Although the course is no doubt demanding, it appears students are only required to attend a single compulsory seminar each year. To achieve Costs Lawyer status at least three years of relevant experience in costs law and practice is required before, during or after study for the Costs Lawyer qualification. The current cost of the course is a very modest £1,400 plus VAT per year. It is therefore possible to become a Grade C fee earner having left school at 16 and worked in a non-legal environment until the age of 18 and then undertaken the Costs Lawyer course over the next 3 years whilst working for a costs firm. It would be possible to attain Grade C status by the age of 21 whilst earning consistently since age 16 and for a fraction of the financial commitment of training to become a solicitor. Many Costs Lawyers earn just as much, and often much more, than a large proportion of the solicitor profession.

Of course, not all Costs Lawyer students will have such a “basic” entry level background. Many will have been law costs draftsmen for many years previously. Many will have undertaken a law degree and the LPC or BVC. Nevertheless, this does offer a surprisingly streamlined, and cheap, route to Grade C status.

29 July, 2014 at 5:48 am

2014 Guideline Hourly Rates

Filed Under Legal Costs | 6 Comments 

The new Guideline Hourly Rates for 2014 have now been announced.

The bad news for those hoping for an increase in the rates is that they remain the same as for 2010.

The good news for those hoping for an increase in the rates is that they remain the same as for 2010. The Report of the Costs Committee had recommended a range of amendments with the average rate going down, not up. The recommendation for Grade C Band One was a reduction from the current £161 per hour to £127. Aren’t you pleased they stayed the same?

Lord Dyson, the Master of the Rolls, rejected the main recommendations in the report on the basis of the “fundamental” shortcomings in the evidence upon which the recommendations were meant to be based. Not enough lawyers had bothered to respond to the survey. As Professor Dominic Regan succinctly summarised the position: “rubbish in, rubbish out. Dodgy data, nothing doing”

Lord Dyson concluded:

• there should not be an additional Grade A star
• that separate GHR bands specific to specialist fields of civil litigation should not be introduced
• that separate rates should not be introduced for detailed assessments of costs, but that there should be greater flexibility in detailed assessments than would ordinarily be shown in summary assessments
• there should be no new Grade E fee grade for paralegals (this would have led to reductions in rates for some Grade D fee earners in Band One from £118 to £75 – a 36% reduction)

The only “changes” Lord Dyson accepted were that:

• the criterion for Grade A fee earners should be amended so that it includes Fellows of CILEX with 8 years’ post-qualification experience
• that Costs Lawyers who are suitably qualified and subject to regulation be eligible for payment at GHR Grades C or B, depending on the complexity of the work

The changes are to come into force on 1 October 2014.

The actual wording of the recommendation in the report for Costs Lawyers was:

“The ACL provided evidence giving details on the qualification route, continuing professional development and regulatory framework for Costs Lawyers. The Committee agreed, and determined that the following approach should be adopted for those Costs Lawyers who are suitably qualified and subject to regulation under the Legal Services Act 2007 to undertake reserved legal activities:

(i) For budgeting and bill drafting, save in exceptional circumstances, Costs Lawyers should sit within the grades for Grade C and D fee earners;
(ii) For practising litigation and advocacy, save in exceptional circumstances, costs lawyers should sit within the grades for Grades C or B."

The amendments for Fellows of CILEX with 8 years’ post-qualification experience and Costs Lawyers are largely changes of style rather than substance. The courts have always had the power to grant experienced Fellows rates equivalent to Grade A rates in appropriate cases and the Senior Courts Costs Office has always accepted that more complex bill drafting may justify Grade C rates and advocacy may justify Grade C or even Grade B rates. The only small extension is to now recognise (costs) litigation in the category now potentially justifying Grade C rates. The only real disputes will be the level of complexity that will be required to justify Grade C or B rates. I anticipate that there will be little real difference to what has gone before.

The Association of Costs Lawyer’s email alert on the news rather misleading stated:

“[Lord Dyson] has however accepted that Costs Lawyers should be recognized by being included in the banding at, predominantly, Grade C and B”.

Lord Dyson appears to have accepted the Report’s recommendation. He has not rejected the reports view that budgeting and bill drafting “should sit within the grades for Grade C and D fee earners”.

As with judgments, never just read the headnote.

24 July, 2014 at 5:44 am

Costs of applications in provisional assessment

Filed Under Legal Costs | 8 Comments 

CPR 47.15(5) states:

“In proceedings which do not go beyond provisional assessment, the maximum amount the court will award to any party as costs of the assessment (other than the costs of drafting the bill of costs) is £1,500 together with any VAT thereon and any court fees paid by that party.”

What about costs incurred in relation to pre-provisional assessment applications such as applications to set aside default costs certificates, applications for interim payments or applications for relief from sanctions?

If such applications are dealt with pre-provisional assessment, it will not be known at that stage whether the proceedings will “go beyond provisional assessment”. Such costs are clearly incurred within the detailed assessment proceedings but are they costs “of the assessment”?

See the comments in Crosbie v Munroe [2003] 3 Costs LR 377 para.34:

"the assessment proceedings cover the whole period of negotiations about the amount of costs payable through the Part 8 proceedings to the ultimate disposal of those proceedings, whether by agreement or court order.”

Are such costs recoverable in addition to the £1,500 cap if the matter ultimately does not go beyond provisional assessment?

16 July, 2014 at 6:31 am

Relief from sanctions – need for promptness

Filed Under Legal Costs | Leave a Comment 

The Court of Appeal advises that the guidance given in Mitchell “remains substantially sound”.

In Mitchell the Court stated:

“If [the breach] can properly be regarded as trivial, the court will usually grant relief provided [emphasis added] that an application is made promptly”

It was therefore implicit that even where the breach was trivial, relief would probably not be granted where a prompt application was not made.

Elsewhere in the judgment it was stated:

“Moreover, as the court emphasised, the application must [emphasis added] be made promptly. This reasoning has equal validity in the context of an application under CPR 3.9.”

Again, absolutely clear an application needs to be prompt.

The Court of Appeal has now “clarified and amplified” its earlier guidance in Denton.

“Trivial” has been redefined:

“we think it would be preferable if in future the focus of the enquiry at the first stage should not be on whether the breach has been trivial. Rather, it should be on whether the breach has been serious or significant.”

The first stage of the new is now:

“If a judge concludes that a breach is not serious or significant, then relief from sanctions will usually be granted and it will usually be unnecessary to spend much time on the second or third stages. If, however, the court decides that the breach is serious or significant, then the second and third stages assume greater importance.”

The guidance was silent at this stage as to whether there is need to make an application promptly if the breach is not serious or significant, unlike in Mitchell.

Promptness is given brief consideration in the Denton judgment when considering “all the circumstances”:

“As has been pointed out in some of the authorities that have followed Mitchell, the promptness of the application will be a relevant circumstance to be weighed in the balance along with all the circumstances.”

The new guidance fails to explain whether the issue of promptness is to be given little weight if the breach was not “serious or significant”.

This is unfortunate.

The Court gives a strong warning to parties:

“We think we should make it plain that it is wholly inappropriate for litigants or their lawyers to take advantage of mistakes made by opposing parties in the hope that relief from sanctions will be denied and that they will obtain a windfall strike out or other litigation advantage. In a case where (a) the failure can be seen to be neither serious nor significant, (b) where a good reason is demonstrated, or (c) where it is otherwise obvious that relief from sanctions is appropriate, parties should agree that relief from sanctions be granted without the need for further costs to be expended in satellite litigation. … Heavy costs sanctions should, therefore, be imposed on parties who behave unreasonably in refusing to agree extensions of time or unreasonably oppose applications for relief from sanctions. An order to pay the costs of the application under rule 3.9 may not always be sufficient. The court can, in an appropriate case, also record in its order that the opposition to the relief application was unreasonable conduct to be taken into account under CPR rule 44.11 when costs are dealt with at the end of the case. If the offending party ultimately wins, the court may make a substantial reduction in its costs recovery on grounds of conduct under rule 44.11. If the offending party ultimately loses, then its conduct may be a good reason to order it to pay indemnity costs. Such an order would free the winning party from the operation of CPR rule 3.18 in relation to its costs budget.”

How is the non-defaulting party meant to deal with a breach that is not “serious or significant” if there has not been a prompt application? Gordon Exall’s Civil Litigation Brief recently explored the problems the non-defaulting party now faces where there is a breach. This is an acute problem in this situation. At what stage should the innocent (ie non-defaulting) party concede relief should be granted? If the promptness of the application is still important, the innocent party can presumably sit back and wait for the formal application to be made. The later it is, the less likely relief will be granted.

It is not uncommon for parties at fault to advise they will make an application for relief and ask the innocent party whether they consent to the same. Can the innocent party sit back and await a formal application and consent to the same if the application is made promptly, in the expectation the defaulting party will have to pay the costs? Will a failure to consent to relief being granted pre-application be treated as unreasonable behaviour even in the absence of a formal application, meaning the innocent party has to pay the costs of the application if, and when, it is made?

Given the Court of Appeal advised that the guidance given in Mitchell “remains substantially sound” surely this means the need for a prompt application still remains. Even if we pretend (as the Court of Appeal did) that they have the power to overturn their own decisions on a whim, surely they would have needed to expressly state the need for a prompt application for breaches which are not “serious or significant” is no longer good law.

The Denton judgment has been widely welcomed by many in the legal profession. I suspect this is largely a result of relief from lawyers that they no longer face the same risk of professional negligence claims and spiralling professional indemnity insurance. In terms of judicial thinking the judgment is a dog’s dinner.

14 July, 2014 at 5:38 am

Listing for provisional assessment

Filed Under Legal Costs | 18 Comments 

I contacted the Senior Courts Costs Office to enquire whether they had received a request for assessment from the other side. (If not, application to swiftly follow.) They were unable to tell me because they have a backlog of claims such that any request for assessment received since April is probably not on the system yet, let alone having a date for provisional/detailed assessment.

The Practice Direction, perhaps optimistically, states:

“the court will use its best endeavours to undertake a provisional assessment within 6 weeks”

The SCCO is clearly currently struggling to even get the cases onto the system in that timescale.

Previously I was hearing those from the SCCO suggesting that the numbers of cases being brought before them for provisional assessment was much less than anticipated. This now seems to suggest that as parties are becoming familiar with the process, the numbers are increasing.

11 July, 2014 at 5:54 am

Mitchell vs Denton – relief from sanctions

Filed Under Legal Costs | 3 Comments 

The guidance given by the Court of Appeal in Mitchell was that in relation to non-compliance with the relevant rule, practice direction or court order:

“If this can properly be regarded as trivial, the court will usually grant relief provided that an application is made promptly. … the court will usually grant relief if there has been no more than an insignificant failure to comply with an order”

The Court recognised:

“We acknowledge that even the question of whether a default is insignificant may give rise to dispute and therefore to contested applications. But that possibility cannot be entirely excluded from any regime which does not impose rigid rules from which no departure, however minor, is permitted.”

The Court of Appeal’s new guidance in Denton is that:

“we think it would be preferable if in future the focus of the enquiry at the first stage should not be on whether the breach has been trivial. Rather, it should be on whether the breach has been serious or significant.”

The Court recognised that “seriousness and significance” is perhaps no more clear-cut than “trivial”:

“We recognise that the concepts of seriousness and significance are not hard-edged and that there are degrees of seriousness and significance, but we hope that, assisted by the guidance given in this decision and its application in individual cases over time, courts will deal with these applications in a consistent manner.”

The new test to apply is:

“If a judge concludes that a breach is not serious or significant, then relief from sanctions will usually be granted”

There is clearly a range of significance in terms of non-compliance with rules, practice directions or court orders. At one end of the spectrum are “trivial”/”insignificant” ones. At the other are “serious or significant” ones. “Trivial”/”insignificant” ones might occupy the bottom 10-20% of the spectrum in terms of significance. “Serious or significant” ones might occupy the top 10-20%. There is therefore a world of difference between the Mitchell test where 10-20% of breaches might be saved by the first stage test (being categorised as “trivial” – everything at the bottom of the spectrum) and the Denton test which saves 80-90% of breaches which do not fall into the top 10-20% of the spectrum.

A 14 year old at their school debating society would not try to argue “trivial” and “not serious or significant” are the same thing.

It is therefore laughable that the Court of Appeal stated the guidance given in Mitchell “remains substantially sound”.

If a solicitor drafted a legal document and used the word “trivial” when they meant “not serious or significant” they would leave themselves wide open to a professional negligence claim. As Kerry Underwood recently commented: “When courts go wrong why do parties, rather than the state, have to pay the legal costs? If fees reflect full cost we should get full value.”

Fortunately the Court of Appeal is never bound by their own decisions and can overturn themselves whenever they feel like it. If it were otherwise we would now, for the first stage of the test, have two conflicting decisions of the same weight. Then we would be in a right mess.

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