Part 36 costs offers

I recently received an offer as follows:

“We confirm that we can agree to accept the sum of £18,800.00 in settlement of our costs, this offer is made subject to S1 Part 36 CPR, applies to the whole of this matter and is open for acceptance for 7 days.

If we do not hear from you within that period we intend to set this matter down.”

I wonder what possesses people who have clearly never read Part 36 to think that making an offer purporting to be a Part 36 offer is a good idea.

Bloody provisional assessments

And another thing…

Problem:

Many judges make the average doctor’s handwriting look as though it was the winning entry to a calligraphy competition. They try to write their decisions to the provisional assessment in boxes which have been left smaller than a postage stamp by the receiving party. The decision is written in light green ink (or perhaps invisible ink) that does not photocopy properly in the copies returned to the parties. The court staff photocopying the Points of Dispute/Replies/Decision fail to notice that the part of the page with the judge’s decisions has not copied properly or that the document is double-sided.

Solution:

When the parties are advised of the date of the provisional assessment (6-9 months in the future), the receiving party is to email a copy of the Points of Dispute/Replies, in Word format, to the court. The judge’s decisions are typed into the Points of Dispute/Replies.

Even the courts’ creaking technology must be able to cope with this.

Provisional assessment – and another thing…

More issues as to provisional assessment…

Problems:

The timing of certain steps in the process is confusing at best.

The parties are meant to undertaken the arithmetic on the Bill as assessed post-provisional assessment. However, how does the judge undertake, where relevant, the global proportionality cross-check if the judge does not know the figure that has been initially arrived at? Some courts are issuing their own directions for the parties to inform the court of the initial calculations so proportionality can then be considered and the final amount determined. However, this step should be provided for in the rules.

The rule concerning filing of statements of costs is a mess. PD 47 para.14.3(c) refers to filing “a [in the singular] statement of the costs claimed in respect of the detailed assessment” implying that it is just the receiving party that will file a statement. What if the paying party has won? There is no requirement to serve the statement of costs on the opponent. The statement of costs will have to be prepared before the provisional assessment has occurred and before the parties have agreed the arithmetic. How much time should go in the statement of costs for the post-assessment number crunching and trying to agree the figures with the other side, when the work has yet to be done? For a Bill at the top end of the £75,000 figure, this can be time consuming if there have been, for example, amendments to the hourly rates and VAT figures. What if the parties cannot agree the figures and need to make written submissions to the court. How is this time dealt with in the statement?

Post-assessment, the parties “must” agree the total sum due to the receiving party on the basis of the court’s decisions within 14 days of receipt of Precedent G. But they then have 21 days to request an oral hearing. Is it necessary to try to agree the exact figures if a party is going to request an oral hearing in any event?

Solutions (and I confess this may need some more thought):

  1. No statement of costs to be served when requesting provisional assessment.
  2. The initially provisionally assessed Bill, pre-proportionality consideration (where the new test applies), is returned to the parties for them to agree within 21 days the calculations and, if possible, any remaining issues including costs of assessment.
  3. Failing agreement, the parties have a further 7 days to, if necessary:
    1. Confirm the agreed calculations and ask the court to deal with proportionality. The court rules on proportionality and provides the decision to the parties. The parties have a further 7 days upon receipt of the same to agree the costs of assessment. Failing agreement, both parties are to file statements of costs together with written submissions as to costs.
    2. If the calculations cannot be agreed, the parties are to make written submissions to the court, and ask for proportionality to be dealt with if necessary. The court rules and provides the decision to the parties. The parties have a further 7 days upon receipt of the same to agree the costs of assessment. Failing agreement, both parties are to file statements of costs together with written submissions as to costs.
    3. If the calculations are agreed and proportionality does not need to be dealt with, but the costs of assessment cannot be agreed, both parties are to file statements of costs together with written submissions as to costs.
    4. Request an oral hearing. Statement of costs to be filed in advance of the hearing in the usual way.

Further issues with provisional assessment

More problems with the provisional assessment process…

Problems:

The, very limited, provisional assessment pilot was based on claims for costs with a value of up to £25,000. When provisional assessment was rolled out the figure was moved up to £75,000. This was an interesting experiment. It failed.

The provisional assessment rules do not require the receiving party to lodge the bulk of their papers with the Court in advance of the assessment. The Senior Courts Costs Office believes it is not possible to properly assess a Bill without the proper supporting documents and requires the solicitor’s full file to be lodged. If the Rules Committee and other courts believe they know better than experienced costs judges and costs officers as to what is required to undertake a fair assessment, they are wrong.

Solutions:

Reduce maximum figure for provisional assessment to £25,000.

Require full supporting papers to be lodged.

Another provisional assessment problem

Another issue with provisional assessment…

Problem:

The rules remain a mess over the issue of what is or is not included in the £1,500 provisional assessment cap. There has already been one amendment to try to clarify the issue but a second is needed. Does the £1,500 include or exclude the costs of negotiating costs prior to a notice of commencement being served? Does the £1,500 include or exclude the costs of Part 8 costs-only proceedings.

Solution:

It should include the costs of any negotiations. It should not make a difference whether this work is done pre or post formal service of a Bill. If the costs of Part 8 proceedings are to be excluded, a fixed fee should be applicable for issuing Part 8 proceedings (say £80 plus court fee).

Problems with provisional assessment

The Forum of Insurance Lawyers is liaising with the Association of Costs Lawyers to identify and suggest solutions to the various problems with the new provisional assessment process. One suggestion…

Problem:

Provisional assessment proceeds on the clearly mistaken belief that either disputes over claims for costs with a value of up to £75,000 are entirely devoid of any points of costs law or, the equally mistaken belief, that all District Judges and Deputy District Judges tasked with undertaking provisional assessment have a basic working knowledge of black letter costs law such that they do not need the assistance of oral submissions and can reach decisions based on the limited contents of Points of Dispute and Replies. Those at the coalface know that many judges do not have even the most rudimentary understanding of basic costs law. The inevitable result is a string of widely unpredictable decisions.

Solution:

There is 0% chance of the time or money being provided to train all District Judges and Deputy District Judges up to even the most basic level required for them to properly undertake provisional assessment. Provisional assessment should be reserved to costs judges or costs officers. The Senior Courts Costs Office should deal with assessments for the South of the country and a second dedicated court appointed to deal with the North. Additional costs judges or costs officers would need to be appointed but the cost would almost certainly be more than off-set by freeing up significant District Judge time and by a corresponding increase in efficiency if the job is being undertaken by those who know what they are doing. If this work was all done at costs officer level, there would presumably be salary savings to be achieved as against the work being done at District Judge level.

Legal cost of travelling to see client

I recently came across an article on the internet about someone in New York giving dance lessons over Skype to someone else living in Baghdad.

If this kind of thing is now being done by ordinary people, why do some solicitors still insist on travelling half way across the country to interview their clients and/or witnesses?

Even if the client/witness does not already have the technology to use Skype (or the equivalent), the solicitor could buy them a top of the range tablet computer pre-loaded with the relevant software and with a 4G data contract (and talk through over the phone even the most technology illiterate person how to answer a Skype call) for a fraction of the amount that is often claimed by solicitors for travel costs.

But we mustn’t rush into modern technology just to reduce legal costs. Nothing wrong with quill and ink.

Christmas Costs Cocktail

Everybody likes mulled wine at Christmas. However, if you’ve just come in from a long walk in the cold, having passed a brass monkey crying his little eyes out, it can be a bit of a kerfuffle to start messing around with cinnamon sticks, grated nutmeg, etc when you just want a quick warming drink.

Fortunately, you can buy mulling syrup. This just needs adding to some red wine in a saucepan (and an optional dash of Cointreau, brandy, etc), warm gently (DO NOT BOIL), and job done. Lakeland sell a very nice Gourmet Mulling Syrup, although others are available on Amazon.

Mulling syrup is the special ingredient for my own little concoction the Christmas Costs Cocktail.

  1. Take two measures of vodka (or gin), one measure of sweet vermouth and half a measure of mulling syrup.
  2. Shake with ice and strain into a chilled martini glass.
  3. Drink.
  4. Repeat as necessary.

Regulating the legal professions

Nicholas Lavender QC, the chairman of the Bar Council, recently criticised the concept of entity-based regulation and suggested it was “simply a fashionable idea amongst regulators”.

The Costs Lawyer Standards Board is currently investigating entity regulation for law costs firms. Entity regulation may well be the solution but I have yet to hear clearly identified the problem which it is meant to solve. In the brave new world, I thought regulation was meant to be evidence based. In the absence of evidence of a meaningful problem, leave well alone.

On the subject of regulation, the LSB, being responsible for overall regulation of the legal professions, has been looking at the cost of legal regulation. Despite being responsible for the issue, they clearly do not know whether, and why, the costs of regulation might be too high. They therefore sent out a survey asking for lawyers to give their feedback. At the conclusion of the survey, the LSB asked whether I would be willing to participate in follow-up research. The LSB, obviously not feeling able to investigate this difficult issue themselves, instructed, at no doubt significant cost, a third party, to undertake this work. I recently received the following email:

“The Legal Service Board (“LSB”) recently conducted an online survey gathering a wide range of views on the cost of regulation for legal services providers in England and Wales. Following that survey, the LSB has commissioned the economic consultancy and research firm ICF Consulting Services (“ICF”) to complete an independent detailed study of the costs of regulation to those providing legal services.

ICF is contacting you because you expressed an interest in participating in this follow-up research when you responded to the LSB online survey. ICF and LSB would be grateful for your cooperation and we hope that you will be able to assist us in this research. We aim for the study to be as representative as possible across the diverse range of legal services providers. Your participation in the study will help to achieve that. We will be distributing a questionnaire on costs in January, followed by a short telephone interview to guide you through these questions in January or early February.

The study is part of a wider programme of LSB work investigating the cost of regulation in legal services and will build on the recent online survey conducted by the LSB. It will add further detail about the cost of regulation and allow more detailed comparisons across the sector and between different types of regulatory cost. In due course this will contribute to practical steps to reduce the cost of regulation.

The full study will be published in June 2015. However, in addition to the information in the study report, ICF will provide each study participant with their own bespoke report outlining how their regulatory costs compare with other study participants’ costs. These will comprise a short report comparing costs with relevant others providing legal services.

Please be assured that any information provided will be treated as confidential by ICF. It has strict confidentiality provisions in its contract with the LSB. Neither the LSB nor your frontline regulator will have access to any data that can be attributed to you or your business. In both the study report and bespoke reports, all cost information other than the participants’ own will be anonymised and aggregated, such that no information is revealed about individually identifiable entities or individual providers. The questionnaire is being undertaken strictly for research purposes and all responses will remain anonymous. ICF will use your contact details for no other purpose beyond this study.

ICF will be running workshops in early January to test the questionnaire and materials that will be used to gather information during this study. We would greatly appreciate volunteers to participate in these workshops. The workshops will help to minimise the demands placed on study participants’ time and refine questionnaire guidance to help participants understand how to complete the questionnaire.

Please contact us to confirm your interest in participating in this study by close Monday 15 December. Please also indicate whether you are willing to participate in a workshop. These will take place in London in early January and would involve no more than half a day of your time testing study materials, so that we can make them as clear and relevant to you as possible.

We thank you in advance for your participation to the study.

Yours Sincerely,
Ben Smithers
Senior Managing Consultant, ICF International”

The consulting agency instructed to establish if and why the costs of legal regulation are too high obviously did not feel qualified to answer the question. They have therefore asked busy lawyers to “volunteer” for a half day workshop to assist in the formulation of questionnaires to send back out to other busy lawyers to complete.

I trust that no stone will go unturned to try to get to the bottom of this issue. Until then it will remain a complete mystery as to what sort of unnecessary work busy lawyers are being asked to undertake that may be contributing to excessive regulatory costs.

Slip of the tongue

Some of the more interesting reading in court judgments comes in the exchanges with the judge that sometimes end up being included in the transcript after the formal judgment has been given. I mentioned the case of Connor v Birmingham City Council the other day and the following extract comes from the transcript to that case:

MR SINGLETON: Your Honour, can I make my usual application at the conclusion of a hearing before your Honour, that my name be amended to Singleton?

JUDGE HAMILTON: I am sorry, have I done it again? I am sorry. I have done it before.

MR SINGLETON: I know exactly how it arises, one becomes convinced in one’s own mind and it sticks there.

JUDGE HAMILTON: Yes, once you have done it. I am sorry, I do apologise though Mr Singleton.

MR SINGLETON: But that aside and onto matters of real moment…

JUDGE HAMILTON: Do you know I thought about it at the time when I was saying it. I thought this is not quite right, but I could not think what was right.

MR SINGLETON: Well, your Honour has avoided a mistake that one of your judicial brethren made which was to refer to me as Mr Simpleton. I wasn’t sure whether it formed part of the judgement or was merely an error.