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Unlawful service by unregulated person

Posted by on 16th January 2019 in costs draftsmen | 1 comment

In Ndole Assets Ltd v Designer M&E Services UK Ltd [2018] EWCA Civ 2865 the Court of Appeal was faced with the issue:

“Is service of a claim form a reserved legal activity for the purposes of the Legal Services Act 2007 (the 2007 Act)? And if it is, does service of a claim form where carried out by a person who is not an authorised or exempt person for the purposes of the 2007 Act have the consequence that service is invalid and that the claim should be struck out?”

On the facts of the case, CSD, referred to as “claims consultants”, purported to serve a claim form on behalf of a litigant in person.  It was not in dispute that CSD were not solicitors and were not authorised for the purposes of the 2007 Act to conduct litigation.

Schedule 2 of the 2007 Act defines “conduct of litigation” as:

“(a) the issuing of proceedings before any court in England and Wales,

(b) the commencement, prosecution and defence of such proceedings, and

(c) the performance of any ancillary functions in relation to such proceedings (such as entering appearances to actions).”

The Court concluded that:

“that service of the claim form was within the ambit of ‘conduct of litigation’. … I consider that service of the claim form is indeed an aspect of ‘prosecution… of such proceedings’ and at all events that service of the claim form is ‘an ancillary function in relation to such proceedings’.  As stated by the Court of Appeal in paragraph 56 of Agassi, it must have been intended that ‘ancillary functions’ would be formal steps required in the conduct of litigation. Service of the claim form is unquestionably, in my opinion, of such a kind. There are rules of court relating to it. A legal action cannot be progressed, cannot be prosecuted, unless and until the claim form is properly served, as the judge had noted. Service is the essential means by which a defendant is notified of the content of the court process which has been initiated against him and in respect of which he is ordinarily required to acknowledge service. Thus service of the claim form falls within the ambit of the statutory language, naturally read.”

The Court therefore decided that service of the claim form had been unlawfully effected by CSD.

Nevertheless, the Court rejected the argument that service was therefore invalid.  The 2007 Act contains no such consequence and such a draconian outcome would not be justified.

“It follows that service in this present case is to be taken as valid unless the court were to decide to set it aside. I can see no reason whatsoever for so ordering.”

This decision has important implications for much costs litigation.

It remains common practice for firms of costs draftsmen and costs lawyers to purport to serve Notices of Commencement, Replies, etc.

Costs draftsmen are clearly not authorised for the purposes of the 2007 Act.

Practising costs lawyers are authorised, but only as individuals.  The Costs Lawyer Standards Board does not regulate entities.  There is no such thing as an authorised firm of costs lawyers.  Any step taken in relation to costs litigation by a costs firm (other than a firm that is an actual firm of solicitors) must be taken by, and in the name of, the individual costs lawyer.  A costs firm cannot go on record as acting for a party to litigation; it must be an individual costs lawyer and any further steps taken must be by the same costs lawyer (unless and until a Notice of Change is filed)

In this case, the Court concluded that:

“even if CSD had … simply sent a letter to the defendant saying they acted for the claimant and enclosing the claim form by way of service under the rules … that would , in my view, have been prohibited.”

It therefore seems inevitable that a court would conclude that service of a Notice of Commencement, etc by a costs draftsman or a costs firm would be an unlawful act.

If it does not invalidate service, does it matter?  Rather.

As the Court observed, the fact that service was not invalid did not mean that no sanction was available:

“On the contrary there are sanctions available in the form, in an appropriate case, of criminal process and sentence and a contempt application. And those sanctions are directed at the right target – that is to say, the person who has actually engaged in the unlawful conduct of litigation.”

The relevant section of the 2007 Act reads:

“Any person who contravenes the provisions of subsection (1) –

(a) shall be guilty of an offence and liable on conviction on indictment to imprisonment for not more than two years or to a fine or to both; and

(b) shall be guilty of contempt of the court in which the action, suit, cause, matter or proceeding in relation to which he so acts is brought or taken and may be punished accordingly; and

(c) in addition to any other penalty or forfeiture and any disability to which he may be subject, shall be liable to a penalty of £50 to be recovered, with the full costs of the action, by an action brought by the Society with consent of the Attorney General in the High Court or in any county court, and to be applied to the use of Her Majesty.”

Something to think about.

Friston on Costs

Posted by on 9th January 2019 in Legal Costs | 2 comments

Shortly before Christmas the new edition of Friston on Costs landed on my doormat.  Obviously, I do not mean that literally.  They have yet to design a letterbox large enough for a book this size and, if you order online, the description has a two-person delivery symbol beside it to indicate the number needed to carry it.

The first edition of this book, still less than 10 years old, ran to 1,245 pages ignoring the preface and contents pages.  This third edition comes in at 2,138 pages and now comes in a heavy cloth binding.

Fortunately, this is not a case of “never mind the quality, feel the width”.

Since the second edition was published (in 2012), the costs world has seen a continuous stream of new case law.  This is all seamlessly introduced into the new edition.  However, more importantly, the intervening period has also seen the introduction of the Jackson reforms.  This led to major changes to the cost rules, the introduction of entirely new areas of costs procedure (such as costs budgeting) and the inevitable explosion of further case law on the new procedures.  This new edition is therefore not simply a general update but is, in large part, a comprehensive rewrite.

The overall scope of the book is an encyclopaedic as ever.  This will be the first port of call for research by all costs practitioners and costs judges.  (I have already found it indispensable to securing a win on a point of principle.)  No topic – however obscure – appears to have been overlooked.

This latest addition includes more general commentary on costs law – from both the author and other legal commentators – than previous editions.  This is welcome.  The fact that there is generally only a finite amount of case law from the higher courts on costs law, combined with the fact that much of the Jackson reforms are still settling in, means that any guidance or thoughts from respected costs experts is to be warmly embraced.

Unfortunately, advocates are unlikely to want to carry a copy of this book to court in addition to a copy of the White Book.  (Did I mention the size of Friston on Costs?)  Fortunately, the book also comes in electronic form.  The iOS compatible version comes with its own app.  On a standard iPad this works at lightning speed and makes searching for topics a breeze.  I have not tried this on other platforms, although expect the Windows and Android versions to be similar.  Amazon is also selling a Kindle version of the book, but suspect this is may not be as fast.  (Personally, I now have the White Book, Friston on Costs and Cook on Costs all in ebook form on an iPad and just take that to court.)

Remarkably, the book is being sold at barely cost price.  The full price for the hard copy is just £175.  To get both the hard copy and ebook costs just an extra £25.  (Amazon currently have the Kindle edition for just £148.79.)

For a limited period, readers of the Legal Costs Blog can obtain a 20% discount off the full price by entering the code “ALFLY5F” when ordering on the publisher’s website.

The author deserves the undying gratitude of the rest of the costs profession.  The latest edition alone must have taken hundreds of hours to write (not to mention eyewatering amounts of lost fee earning time).  On the back of this book, lesser lawyers will save immeasurable amounts of research time and give the impression they are considerably more knowledgeable than the facts would justify.  Standing on the shoulders of giants…

The bible of the legal costs world is back, bigger and better than ever.

Failure to serve electronic bill of costs

Posted by on 10th December 2018 in detailed assessment | 7 comments

PD 47 para.5.1 requires an electronic bill of costs for any work  undertaken after 6 April 2018 where the claim is a Part 7 multi-track claim.

The Practice Direction contains no sanction for failing to comply with this requirement.

CPR 44.11 provides:

        “(1) The court may make an order under this rule where –

(a) a party or that party’s legal representative, in connection with a summary or detailed assessment, fails to comply with a rule, practice direction or court order;

(2) Where paragraph (1) applies, the court may –

(a) disallow all or part of the costs which are being assessed”

There appear to be a number options open to the Court where there is a failure to comply with PD 47 para.5.1, including:

  1. Tutting and proceeding with the assessment regardless.
  2. Refusing to proceed with the assessment until a compliant electronic bill (and amended paper bill) is served/filed.
  3. Making an unless order requiring a compliant electronic bill (and amended paper bill) to be served/filed by a certain date failing which all costs will be disallowed.
  4. Disallowing any post-6 April 2018 work (which may not be straightforward where the bill does not clearly identity all such work).
  5. Making a percentage reduction to the bill (perhaps roughly reflecting the proportion of post-6 April 2018 work claimed).
  6. Disallowing all costs.

Interim costs payment following acceptance of Part 36 offer

Posted by on 30th November 2018 in detailed assessment | 0 comments

I had anticipated that the case of Culliford & Anor v Thorpe [2018] EWHC 2532 (Ch) would be the last word we would hear on the subject of interim payments for costs.  In that case the court had to decide whether it had the power to order an interim costs payment after the original costs order had been made. The judge concluded:

“In my judgment, it is not the law that, once an order for costs has been made, drawn up and sealed, no further application can be made to the court for an order for a payment of a sum on account of those costs. There is nothing in the rules which so requires, and there may be good reason why payment of the sum on account is not considered at the time the order was made. My decision in Ashman v Thomas [2016] EWHC 1810 (Ch) does not decide to the contrary. It was a case where the court was asked to revisit its order before it had been drawn up and entered. So it turned on the so-called Barrell jurisdiction. There was no need to decide what would have happened if the order had already been entered. Although CPR 44.2(8) contemplates that the court will decide this question at the time of making the order for costs, to my mind this does not exclude the possibility that the court should decide it later. I see no justification in the rules or authorities for the Claimants’ view that, if an application is not made at the time, the next opportunity arises only after detailed assessment proceedings have been commenced.”

However, barely had the ink dried on that judgment before another decision on this topic has been reported (although the case was actually heard several months before Culliford).

In Finnegan v Frank Spiers [2018] EWHC 3064 (Ch) the High Court ruled that the court has no power to order a payment of costs on account after a Part 36 offer has been accepted.  This is because Part 36 is a self-contained code and it makes no provision for payments on account following acceptance of a Part 36 offer.

We now have two different principles governing interim payments on account:

  1. Where the court makes an order for costs it may at the same time, or at any point subsequently, order a payment on account of those costs (pursuant to Culliford).
  2. Where the order for costs is a deemed costs order following acceptance of a Part 36 offer, the court has no power to order a payment on account (pursuant to Finnegan).

The judgment in Finnegan reveals a strange route by which the matter came to appeal, which is not commented upon (and I have seen no subsequent comment on this point elsewhere).

The case concerned a Part 36 offer accepted on 23 March 2017.

In early June 2017 the Claimant issued the application for an interim payment on account.

It was not until 8 August 2017 that the Claimant finally commenced detailed assessment proceedings (out of time).

The application came before a District Judge, on a date not given within the judgment, where the judge concluded there was no jurisdiction to order an interim payment on account.  The judge commented that by this stage: “the claimant has requested a provisional assessment”.

Permission to appeal that decision was given on 13 March 2018 and was heard on 27 June 2018.

All of this was unnecessary and misconceived.  By the time of the hearing before the District Judge, a request had been made for a provisional assessment.  There was therefore a clear right to request an interim costs certificate under CPR 47.16 (as opposed to an interim payment on account under CPR 44.2(8)).  Having said that, Cook on Costs 2018 notes: “The laudable aim of provisional assessments is that they will be completed within six weeks of the request for detailed assessment. It is unlikely that courts will entertain interim costs certificate applications if the delay in getting a provisionally assessed bill is well under two months”.  But, by the same logic, one must wonder why the courts would have entertained an application for an interim payment on account for a provisional assessment matter.  Again, as per Cook on Costs 2018: “There are good policy reasons for requiring parties to get on with the detailed assessment proceedings in accordance with Part 47 rather than making interim applications to the court”.

Then again, we are presumably taking about a Bill of Costs valued at under £75,000.  In this case, the Defendant had apparently already made a voluntary interim payment of £30,000.  The application that was issued sought a (presumably further) £19,000.  This was a lot of satellite litigation over not very much.

Senior Courts Costs Office Guide 2018

Posted by on 22nd November 2018 in Uncategorised | 0 comments

The SCCO has published the updated Senior Courts Costs Office Guide 2018.  This is the first update since 2013.

It provides a helpful summary of a number of procedural points.  It also provides a useful list of the current Regional Costs Judges.

Defective costs budgets

Posted by on 29th October 2018 in costs budgeting | 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 complete budgets taking the matter up to trial.  PD 3E para.6(a) provides that: “In substantial cases, the court may direct that budgets be limited initially to part only of the proceedings and subsequently extended to cover the whole proceedings”.  Any party wishing to budget for only part of the case therefore needs to make an application to the court in advance of the deadline for filing budgets.

The judgment itself is lengthy and deals with a large number of different grounds of appeal, not making it entirely easy to extract the key points.  Nevertheless, a number of important principles are dealt with.

The moment at which the sanction bites was dealt with as follows:

“It was submitted on behalf of [the Claimant] that the operation of CPR 3.14 was not automatic. I disagree. CPR 3.8 makes it plain that the operation of a sanction such as that in CPR 3.14 is not dependent upon there being any further order by the court. On the contrary, the sanction applies unless the court otherwise orders. The natural meaning of this provision is that once there has been a relevant failure, then in the absence of any contemporaneous or earlier order to the contrary, CPR 3.14 bites. From that time on, unless and until there is an order by the court to the contrary, the party in question is deemed to have filed a budget comprising only the applicable court fees. Whether that continues to be the case for the purposes of costs budgeting is a matter for the court.”

At the original hearing, the Claimant had not made an application (even if only oral) for relief from sanctions.  Nevertheless, as mentioned above, it was recognised that the wording of CPR 3.14 required the master to consider whether to disapply the sanction:

“in circumstances where CPR 3.14 expressly states that the sanction is to apply unless ‘the court otherwise orders’ it would be entirely appropriate for the court to pause, and canvas with the parties whether there is any reason for the court to make a different order.”

It was recognised that there is a distinction between an application for relief from sanctions and consideration of whether to disapply CPR 3.14:

“The vital difference is that on an application under CPR 3.9 the starting point is that the sanction has been properly imposed and complies with the overriding objective … . By contrast, while the factors calling for consideration when deciding on disapplication under CPR 3.14 are similar to those which arise on an application for relief under CPR 3.9, the context is very different. When considering disapplication there has been no prior judicial decision that the sanction was appropriate and in accordance with the overriding objective. Thus a significant fetter on the court’s ability to grant relief does not apply to consideration by the court of whether the sanction under CPR 3.14 should be disapplied using the express power to do so in CPR 3.14.”

Nevertheless, it was common ground that the Denton approach would apply to consideration of whether to exercise the discretion to disapply the sanction, in the same way as it would in relation to an application for relief from sanctions.  This follows the Court of Appeal’s decision in Mitchell v News Group Newspapers Ltd:

“We should add that in our view the considerations to which the court should have regard when deciding whether it should ‘otherwise order’ are likely to be the same as those which are relevant to a decision whether to grant relief under CPR 3.9.”

From these various passages, I take the following:

  1. The CPR 3.14 sanction bites at the point of the breach.
  2. At a subsequent costs management hearing, the judge must consider whether to disapply the sanction even in the absence of an application for relief from sanctions.
  3. The court will adopt the Denton approach to whether to disapply the sanction but will not take as a starting point a presumption that the sanction was properly applied.

The distinction between whether the sanction bites automatically, but may then be disapplied by the judge at the costs management hearing, or whether it only bites if the judge so orders (as a result of deciding not to “otherwise order”) may seem academic.  However, the distinction may prove crucial.  It is not uncommon for budgets to be filed and exchanged but then, often because of extraordinary delay in the matter coming before the Court for a costs management hearing (because the courts often adjourn this issue until a date after the original CMC), for the matter to settle before a judge would have been in a position to “otherwise order”.  If the filed budget was defective, it would be a brave party who sought to rely on a judge on detailed assessment deciding he had the power, or inclination, to “otherwise order”.

A further issue that was explored was how significant the defect in the budget needed to be before it would be treated as a failure to file any budget.

PD 3E para.6 states:

“(a) Unless the court otherwise orders, a budget must be in the form of Precedent H [emphasis added] annexed to this Practice Direction. It must be in landscape format with an easily legible typeface. In substantial cases, the court may direct that budgets be limited initially to part only of the proceedings and subsequently extended to cover the whole proceedings. A budget must be dated and verified by a statement of truth signed by a senior legal representative of the party.

(b) Parties must follow the Precedent H Guidance Note in all respects [emphasis added]”

Here, the budget filed by the Claimant was held to be clearly defective:

“there can be no doubt that the obligation under CPR 3.13 as amplified in PD 3E is, unless the court otherwise orders, to file a budget ‘in the form of Precedent H’, and which follows the Precedent H Guidance Note in all respects. Paragraph 6 of PD 3E says so …. In the present case it is clear that Mr Page’s interim budget did not meet important requirements of Precedent H. Precedent H required Mr Page to set out his budgeted costs for trial preparation and for trial. Mr Page’s interim budget did not do this.”

This appears to imply that the budget must virtually mirror Precedent H and the Guidance Notes.

On the other hand:

“CPR 3.14 will only apply to [the Claimant] if he ‘failed to file a budget’. [The Claimant’s] first contention is that, on an ordinary use of language, he had filed a ‘budget’. In this context, [the Defendant] accepted that a mere irregularity would not nullify what would otherwise be a costs budget. I agree. It seems to me that [the Defendant’s] approach in this regard is consistent with the decision of Stuart-Smith J in Americhem Europe Ltd v Rakem Ltd [2014] EWHC 1881 (TCC). There a solicitor had served and filed a costs budget in the form of Precedent H in time, but it was signed by a costs draftsman and not by a senior legal representative within the meaning of PD 3E. Stuart-Smith J found that while this was contrary to PD 3E, there was nothing to impede the normal constructive discussions on figures. In those circumstances what went wrong in that case was entirely different in nature from the present case, where what was filed omitted important sections of Precedent H.”

Naturally, it will be fact sensitive as to whether a breach is “a mere irregularity” or a failure to “meet important requirements”.

Expect more litigation on this issue.

 

Timing of payments on account

Posted by on 17th October 2018 in detailed assessment | 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 be made on written submissions.

The Master held he had the power make an order for an interim payment because the court retains power to alter its judgment or order at any time until it is entered and perfected by sealing, and so ordered an interim payment to be made.

At the time I commented that the “decision rather evades the issue.  The Master did not expressly decide that no general power existed to make an order under CPR 44.2(8) at any stage.  Rather, he decided that he had the power to ‘alter’ his order, prior to it being entered and sealed, to include provision for an interim payment.  Nevertheless, it is clearly implicit in his decision that this route was only open to him because the final order had not been entered and sealed.  Otherwise, the defendant would have had to wait until after filing a request for a detailed assessment hearing”.

It is therefore interesting that this very same issue returned to the same judge, sitting as a High Court judge, in Culliford & Anor v Thorpe [2018] EWHC 2532 (Ch) where he was forced to make a direct decision on whether the Court has the power to order an interim costs payment after the original costs order had been made. He concluded:

“In my judgment, it is not the law that, once an order for costs has been made, drawn up and sealed, no further application can be made to the court for an order for a payment of a sum on account of those costs. There is nothing in the rules which so requires, and there may be good reason why payment of the sum on account is not considered at the time the order was made. My decision in Ashman v Thomas [2016] EWHC 1810 (Ch) does not decide to the contrary. It was a case where the court was asked to revisit its order before it had been drawn up and entered. So it turned on the so-called Barrell jurisdiction. There was no need to decide what would have happened if the order had already been entered. Although r 44.2(8) contemplates that the court will decide this question at the time of making the order for costs, to my mind this does not exclude the possibility that the court should decide it later. I see no justification in the rules or authorities for the Claimants’ view that, if an application is not made at the time, the next opportunity arises only after detailed assessment proceedings have been commenced.”

We now have, over 19 years since these rules were introduced, a binding authority on the power these rules confer.  We will no doubt have to wait a similar period before any meaningful guidance is given on the issue of proportionality.It also means:

1. Cook on Costs‘s traditional interpretation of these provisions has been consistently wrong (although the 2018 edition recognises there have been “conflicting first instance decisions on this point”).

2. CPR 47.16(1) is a redundant provision.

Second fee earner attending conference

Posted by on 4th September 2018 in detailed assessment | 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 claimed for typing-out verbatim, with two fingers, everything that was said at the conference, how is it possible for more time to be spent on the note than was spent at the conference itself?

At what stage in the evolution of the modern law firm did solicitors first come to believe it was acceptable to advance such claims?

Most Outstanding Legal Costs Litigation Firm 2018 – London

Posted by on 8th August 2018 in Legal Costs | 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 globe prepared to part with good money for these meaningless vanity awards whose sole purpose, presumably, is to persuade potential clients that these are a mark of quality.  How depressing.

Court of Appeal guidance on proportionality

Posted by on 1st August 2018 in proportionality | 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 up.