The defendant costs specialists

Posts Tagged "detailed assessment"

Getting inside the mind of a costs judge

By on Jun 21, 2010 | 5 comments

The Legal Costs Blog has been a bit quite over the last few days. This is because I’ve been on holiday in sunny Turkey. Indeed, I’m writing this post lying on a sun-lounger by the pool with the laptop precariously balanced on my stomach and with a drink on the table beside me with an extra long straw to avoid any danger of accidentally performing a sit-up. However, my time has not been entirely wasted with my holiday reading material. In a previous post I commented on the problem that costs judges face in that the only bills of costs they are likely to see are the most unreasonable ones. Reasonable bills almost invariably settle. Judges perception of what is “normal” is formed by the most unusual bills that come their way. The following comes from Kevin Dutton’s fascinating book Flipnosis. Ask a colleague the following question: How many litres of diesel does it take to fill up a jumbo jet? Is it more of less than 500? Now ask another colleague the same question with a subtle twist: How many litres of diesel does it take to fill up a jumbo jet? Is it more of less than 500,000? Then ask each of them to give a concrete estimate of how many litres of diesel it really does take to fill up a jumbo yet. Almost inevitably, the first person will give a lower estimate than the second person, and probably by a very large margin. The reason for this is something called anchoring. Both colleagues will quite literally use the numbers you put in their head (500 or 500,000) as their frame of reference – anchoring points – on which to base their judgements. Dutton’s books goes on to describe how this concept of anchoring influences even judges, as shown in a study by German psychologists Birte Englich, Fritz Strack and Thomas Mussweiler: “The team took a group of experienced judges and asked them to read an outline of a case. The case involved a man who’d been convicted of rape. Once they’d familiarised themselves with the details, the judges where then divided into two groups. One group were to imagine the following: that while the court...

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Is Jackson already happening?

By on Apr 26, 2010 | 1 comment

Not all of the proposals contained in Lord Justice Jackson’s Review of Civil Litigation Costs require primary legislation.  One of the intriguing questions is the extent to which the judiciary will quietly introduce some of his ideas. Andrew Parker, writing in the New Law Journal, said: "Anecdotally one or two County Courts are already taking steps to apply some of the ideas on fast track costs". I haven’t had enough cases proceed to detailed assessment yet to form any view.  Have any readers begun to see Jackson influencing the courts...

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Reasonable legal costs – Compared to what?

By on Feb 16, 2010 | 1 comment

It is not unusual for me to make offers in relation to claimants’ bills of costs that represents only a fraction of the amount claimed.  However, from time to time the response I receive is not simply the inevitable one of displeasure but what appears to be a genuine reaction of incredulity.  There appears to be total disbelief in relation to the figures I have put forward, particularly in relation to document time in high value claims.  The claimant’s lawyer takes the view that no solicitor, however good, could possibly be expected to undertake the work in so little time. The problem that many claimant lawyers have is that their experience of what is "normal", in terms of time taken to run a claim, is often limited to no more than how long it takes them, or possibly some of their colleagues in the same firm, to run similar cases.  They have no idea how other firms handle such claims or how quickly.  If they spend 100 hours on documents for a certain type of disease claim they assume that is normal and reasonable.  The fact that the majority of other firms, for a similar claim, might take, for example, 50 hours is something totally outside their field of experience. On the other hand, as a defendant costs practitioner, I see large numbers of bills of costs from firms throughout the country.  In my capacity as a manager, I have seen literally thousands more claims for costs beyond those I have dealt with personally.  It is staggering the difference in the size of a bill from an efficient firm compared to those from inefficient firms.  Before some readers start complaining that they should not be criticised for dealing methodically and conscientiously with their clients’ claims and not cutting corners, my experience is that the best fee earners, in terms of the results they achieve for their clients, are very often exactly the same ones who produce the most modest bills.  It is often those firms that are not real specialists (despite their claims to the contrary) who under-settle claims, take twice as long to achieve under-settlement, and then produce the highest bills.  One of the obvious criticisms of the...

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Default costs certificates

By on Feb 11, 2010 | 1 comment

In legal costs it can often be the case that a judgment that is concerned with one particular issue may have unexpected relevance in another area.  One example of this is the case of Roundstone Nurseries Ltd v Stephenson Holdings Ltd [2009] EWHC 1431 (TCC). The matter concerned a claim where proceedings had been issued.  The parties agreed that the proceedings should be stayed by court order to allow for the parties to complete the Pre-Action Protocol process.  The period of the stay came to an end but neither party had applied to the court to extend the stay of the proceedings, despite the Defendant noting in correspondence that such an extension was needed.  In the absence of a defence being filed by the Defendant, the Claimant, without any further reference to the Defendant, applied for and obtained judgment in default.  The Claimant subsequently agreed to have the judgment in default set aside by consent but claimed they were entitled to their costs of the application to set aside and should not be required to pay the Defendant’s costs of the application. The judge, Mr Justice Coulson, accepted that the Claimant was technically entitled to enter judgment.  However, the judge concluded: “During the course of his helpful submissions on this point, Mr. Crangle went so far as to say that, if a claimant was technically entitled to enter judgment in default then he was entitled to do so, even if he knew that the defendant had a real prospect of defending the claim and therefore setting aside such judgment.  I am afraid I do not accept that submission: it seems to me that it is contrary to the entire basis of the Civil Procedure Rules.  If a claimant knows that, because of some technical glitch, he could enter judgment in default against the defendant, but that the defendant had a real prospect of successfully defending the claim (and therefore getting judgment set aside) then that claimant should not, at least as a general rule, enter judgment in default.  If he does, it seems to me that he must face the costs consequences of that decision.” This decision seems to be relevant in relation to default costs certificates.  Although the...

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Court of Appeal Legal Costs Judgments

By on Feb 9, 2010 | 5 comments

You wait ages for an interesting legal costs decision from the Court of Appeal and then two come along together.  Both cases concerned a similar issue as to the extent of a costs judge’s discretion to limit costs in a manner that appears to go beyond a strict reading of the final costs order.   In Drew v Whitbread [2010] EWCA Civ 53 the claim had been allocated to the multi track on the basis of the claimant’s schedule of special damages.  At trial the matter went into a second day and the judge limited the claimant’s damages to an amount within the fast track limit.  The final order was that costs were to be assessed on the standard basis.    The District Judge ruled on commencement of the detailed assessment that costs would be assessed as if the matter had been allocated to the fast-track.  This restricted the level of costs recoverable.    The Court of Appeal recognised that the case raised a number of points of principle:   “Where the trial judge has in a multi-track case ordered costs to be paid on the standard basis, to what extent is a costs judge free to rule that the case was in reality a fast track case and assess trial costs on a fast track basis?  Is this a matter which a paying party has to raise before the trial judge or be precluded from raising the point thereafter?  In particular should a party obtain a ruling from the trial judge as to whether a case should have been disposed of within a day when in fact it was not?  If the costs judge is free to consider whether a case should have been allocated to the fast track, how should he or she approach assessment thereafter; can he or she simply say I am going to assess the costs of trial as if it was a fast track case or is it simply something to be taken into account when assessing the costs?”   The Claimant argued by reference to Aaron v Shelton [2004] EWHC 1162 that if a party wishes to argue that a case was, in reality, a fast-track case, and in particular that it...

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