The defendant costs specialists

detailed assessment

Second fee earner attending conference

By on Sep 4, 2018 | 4 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...

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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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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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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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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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Proportionality test – providing specific reasoning

By on Jan 17, 2018 | 0 comments

At the heart of the successful appeal in May v Wavell Group was the appeal judge’s view that, apparently, the issue of proportionality is something readily discoverable once all the relevant factors have been taken into account.  He held: “the construction of the rules relating to the definition of proportionality and their application do not involve a discretion properly so called but require the court to make a judgment on what the rules mean and how they should be applied. That is a matter of law. The application of the rules, once interpreted, require a balance to be undertaken, in that weight (which includes the possibility of no weight) has to be accorded to each of the factors specified by the rules, but that again is the making of a judgment, albeit of a rather broader nature than construction of the rules, rather than the exercise of a discretion.” and: “There may be a limited range of acceptable difference in the total figure once the rules have been applied, in that different judges could legitimately come to slightly different conclusions as to the proportionate sum, and so long as they have applied the rules correctly they should not be open to challenge on appeal.” Given the rules and Practice Direction are entirely silent as to what amounts to “proportionality”, this is a surprising view.  We now have a member of the judiciary who believes that the new proportionality test can be applied in a quasi-scientific manner. Again: “Whether the relationship is reasonable is, in my view, a matter of judgment, rather than discretion, and, as I have said above, requires a costs judge to attribute weight, and sometimes no weight, to each of the factors (a) to (e).” His criticism of Master Rowley’s decision was that: “the final figure in this case does not appear to be based on any specific mathematical calculation nor is there a specific explanation of how the weighting of the various factors resulted in the final figure.” Surely then, the appeal decision undertook just such a careful mathematical calculation and/or gave a specific explanation as to the weighting given when allowing the figure of £75,000 plus VAT.  Here it is: “In those circumstances we...

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