13 November, 2013 at 5:27 am
Extract from Narrative to bill of costs:
“Computer technology was utilised wherever possible. … The Claimants' solicitors have tried to use novel and efficient ways of dealing with the claim. Wherever possible standard documents have been prepared including questionnaires and in some cases, standard letters. Meetings with the individual Claimants have been minimised. Pro-active use of Part 36 offers and proposed schemes of settlement were intended to enable claims to be resolved in a cost effective and efficient manner”
“Novel”? Computer technology, questionnaires and standard letters?
Welcome to the Twentieth Century.
The “novel” element is also wearing a bit thin given this same standard wording is included in all bills prepared by these costs draftsmen for this firm of solicitors.
11 November, 2013 at 6:17 am
Regional Costs Judge Marshall Phillips writing in the Solicitors Journal:
“In cases issued on or after 1 April 2013, the receiving party should differentiate between work done before and after that date, proving a total for work done before and a total for work done after. The court will be applying a different proportionality test for work done during these two periods”.
For many cases, this is no doubt a sensible suggestion, but it is not required by the rules.
Secondly, so far as the courts “applying a differently proportionality test for work done during these two periods”, not necessarily. See: proportionality transitional provisions.
8 November, 2013 at 5:39 am
I note the Senior Courts Costs Office Guide 2013 explains:
“Independent costs draftsmen have no rights of audience as such but, by concession, are treated as if they are in the employ of the firm of solicitors or other legal representatives instructing them.”
I still don’t understand why they view it as a concession. Assuming they have been properly instructed, it is permitted under the Legal Services Act 2007. See: here.
6 November, 2013 at 5:54 am
Some excellent advice from Antony Smith of Legal Project Management Limited, writing in Litigation Funding:
“Generally, estimating is best done when based on historical data of previous projects which are similar to that at hand. Lawyers are lucky here, as their practice management systems and/or case management systems should hold this kind of data. … Ideally, the historical data used should be from cases the lawyers responsible for preparing the current estimates have themselves worked on previously. In the absence of that, lawyers should mine historical data of similar cases worked on by others in their firm. My advice would be to try and avoid any industry benchmarks – the whole point is to estimate the effort and cost it will take you and your firm to complete the matter.”
I fear this is the least understood area of costs budgeting and will be, in the early days, where things most go wrong.
Many of those preparing budgets will not be using historical data but will be using their “experience”.
To mine historical data at firm level, let alone fee earner level, so the data properly fits the phases’ stage of budgeting is generally going to be a fantastically time consuming, and therefore expensive, task for which it will not be possible to charge.
Even where costs firms have undertaken serious analysis of their historical data, this will often only produce industry averages. To apply this data to a new firm of solicitors seeking help with their costs budgeting is a recipe for disaster.
4 November, 2013 at 5:19 am
A helpful summary from the Senior Courts Costs Office Guide 2013 on the consequences of Part 36 offers in detailed assessment proceedings:
“Either party may, at any time, make a formal settlement offer in accordance with Part 36. If the paying party makes such an offer and it is accepted by the receiving party within the specified period for acceptance, the receiving party will also receive its costs of assessment to the date of acceptance.
If the receiving party does not accept and the bill is assessed at no more than the paying party’s Part 36 offer, the normal rule will be that the receiving party must meet the paying party’s costs of assessment, with interest, from the end of the specified period for acceptance. If the receiving party accepts the offer after the period for acceptance expires, the receiving party will normally have to pay the paying party’s costs from that point.
If the receiving party makes a Part 36 offer, the paying party does not accept and the bill is assessed at as much as or more than that offer, the paying party will normally have to pay, from the end of the specified period for acceptance, interest at up to 10% above base rate on the bill as assessed, the costs of assessment on the indemnity basis and interest on those costs, again at up to 10% above base rate. It shall also normally have to pay an extra 10% of the bill as assessed (reduced to 5% for any amount over £500,000 and capped at £75,000).”
1 November, 2013 at 5:12 am
Another useful, if basic, point from the Senior Courts Costs Office Guide 2013:
“It is standard practice for the client care letter (redacted where appropriate) to be shown to the paying party. The Court of Appeal has held that it should be the usual practice for a conditional fee agreement (redacted where appropriate) to be disclosed for the purpose of costs proceedings in which a success fee is claimed.”
I wish all law costs draftsmen and costs lawyers were taught this on day one.
30 October, 2013 at 5:55 am
The Senior Courts Costs Office Guide 2013, in relation to provisional assessment, states:
“In the SCCO the Costs Judge or costs officer will have regard to the papers in support of the bill (that is, the papers listed in paragraph 13.12 of Practice Direction 47) when conducting the provisional assessment. If the receiving party has not lodged the supporting papers with the request for detailed assessment, that party should do so when requested by the court.”
Paragraph 13.12 of Practice Direction 47 reads:
“The papers to be filed in support of the bill and the order in which they are to be arranged are as follows—
(i) instructions and briefs to counsel arranged in chronological order together with all advices, opinions and drafts received and response to such instructions;
(ii) reports and opinions of medical and other experts;
(iii) any other relevant papers;
(iv) a full set of any relevant statements of case
(v) correspondence, file notes and attendance notes;”
In other words, the full file. This confirms that the SCCO is going to undertake provisional assessment based on the full file, contrary to what is envisaged by the rules where the provisional assessment will be based on limited documents being before the Court.
28 October, 2013 at 6:00 am
An interesting approach from the Senior Courts Costs Office Guide 2013 in relation to applications for interim costs certificates in provisional assessment cases:
“An application for an interim costs certificate which is made in a case proceeding to a provisional assessment will not be listed for hearing on a date before the provisional assessment takes place unless some good reason for such an early listing is shown.”
25 October, 2013 at 5:35 am
My favourite legal quote of the year, by Jeff Zindani in the recently published Surviving Jackson:
“Lawyers don’t like to be told there is urgency or a crisis unless it involves a paying client.”
23 October, 2013 at 5:46 am
Quick reminder from the Senior Courts Costs Office Guide 2013 as to the status of a signature to a bill of costs, which is still much misunderstood by many law costs draftsmen and costs lawyers:
“The signature of a statement of costs or a bill for detailed assessment by a solicitor is in normal circumstances sufficient to enable the court to be satisfied that the indemnity principle has not been breached in respect of costs payable under a conventional bill: Bailey v IBC Vehicles Ltd  3 All ER 570 CA. However, the same may not be true in respect of costs payable under a conditional fee agreement: Hollins v Russell  1 WLR 2487.”
Note the comments concerning the signature not necessarily being sufficient where there is a CFA. No mention of this being limited to pre-November 2005 CFAs.