Posts made in March, 2013

Costs Only Proceedings

By on Mar 21, 2013 | 17 comments

Part 44.12A Costs Only Proceedings is one of the costs rules that, after some initial teething problems, works very well. That hasn’t stopped the rules committee deciding to tinker. It’s not remotely clear why. Gone is the old CPR 44.12A(2): “Either party to the agreement may start proceedings under this rule…” Why? Does this mean paying parties can no longer get things going? If this was a deliberate decision, why was it taken? Are paying parties now unable to take any positive step to progress matters where a receiving party drags their...

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Association of Costs Lawyers

By on Mar 20, 2013 | 12 comments

The May 2010 edition of Costs Lawyer magazine reported the chairman of the Association of Law Costs Draftsmen’s (as it then was) view that: “Mr Stark is convinced that Associate and Fellow levels need to be abolished, so that there are either students or costs lawyers. He does, however, appreciate that this change is going to have to be sold to those Associates and Fellows who have no need for the rights costs lawyer status brings.” In July 2010 the ALCD announced that the categories of membership would be reduced to two: Costs Lawyer and Student. Iain Stark, chairman of the Association wrote: “the re-structuring of the membership is vital if the ALCD is to move forward as an approved regulator” And so it came to pass. I now note from the December minutes of the Council of the Association of Costs Lawyers that: “ACL membership categories were discussed. There will be a complete review of the categories in April.” I’m not sure if any consultation is proposed but I offer a modest proposal. A new category could be introduced for those law costs draftsmen who do not require rights of audience or the right to conduct costs litigation. They could be called, oh, I don’t know, lets say “Associates”....

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Costs management

By on Mar 19, 2013 | 12 comments

Members of the Association of Costs Lawyers have received an invitation from His Honour Judge Simon Brown QC for their comments or observations upon costs management and its mechanics under the pilot scheme under PD 51G. This pilot runs until 31 March 2013 and a final report will be published on 26 March 2013. Costs Lawyers are asked: “Please do let us have your views on costs management, even if is at the 11th hour. Feedback can still be incorporated in the Final Report, on an anonymised basis, and might lead to further improvements of the costs management procedure.” And there was me thinking a decision had been taken that costs management was already a good idea (except for large cases), new rules had been published and this was all due to start on April Fools’ Day. Silly me. The invitation also asks for: “Any views on the new definition of proportionality?” That I’m happy to provide. It won’t work because the Court of Appeal will chicken out when the first case reaches them and they give us a meaningless new Lownds II...

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New proportionality test for costs

By on Mar 18, 2013 | 2 comments

When the new costs rules were first published the relevant transitional provision concerning the new proportionality test read: “Paragraphs (2)(a) and (5) do not apply in relation to cases commenced before 1 April 2013 and in relation to such cases, rule 44.4(2)(a) as it was in force immediately before 1 April 2013 will apply instead.” This caused two problems. Firstly, the phrase “cases commenced” was ambiguous. Secondly, it appeared to be retrospective in effect meaning the new test would apply in some case to work already undertaken. This problem was, partly, recognised and it was announced that Richard LJ said the rule committee “acknowledged the force” of the Law Society’s argument and was to insert a further transitional provision within rule 44.3: “to the effect that costs incurred in respect of work done before 1 April 2013 will not be disallowed if they would have been allowed under the rules in force immediately before that date”. That would have meant all work done pre-April 2013 would be subject to the old test and any work done post-April 2013 subject to the new test. We now have the Civil Procedure (Amendment No.2) Rules 2013 to deal with this. However, it does something totally different again: “Paragraphs (2)(a) and (5) do not apply in relation to— (a) cases commenced before 1st April 2013; or (b) costs incurred in respect of work done before 1st April 2013, and in relation to such cases or costs, rule 44.4.(2)(a) as it was in force immediately before 1st April 2013 will apply instead.” It’s staggering that they have left in the ambiguous wording “cases commenced” (unless the Association of Costs Lawyers and the Costs Bar have been giving bungs to the committee to ensure the rules are as ambiguous and badly drafted as possible to generate as much satellite litigation as possible). Nevertheless, from the context I am treating “cases commenced” as meaning “cases where proceedings have been issued” (how hard would it have been to use that wording?). What this means therefore is that the old proportionality test will apply to all work done for cases where proceedings have been issued before 1 April 2013. Perhaps this is a cunning wheeze by the Ministry...

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Part 36 offers and detailed assesment proceedings

By on Mar 15, 2013 | 15 comments

The Association of Costs Lawyers often used to have an examination question along the lines of: “There is no point in a receiving party making an offer to settle in detailed assessment proceedings. Discuss.” The reasoning behind the question is that receiving parties currently have a presumption in their favour that they will be awarded their detailed assessment costs. Unless and until the paying party makes an offer that puts them at risk they can carry on regardless. If a receiving party does make a successful offer (usually by way of Part 47.19) there is no bonus (eg by way of enhanced interest or costs on the indemnity basis)) for making such an offer. All that is likely to happen is that the receiving party will be awarded their assessment costs; which is no more than the general presumption allows for in any event. From 1 April 2013, Part 47.19 offers, as they now are, go. Part 36 will then apply. I have already written about one of the problems this creates and there are others. Nonetheless, Part 36 is here to stay. The wording of Part 36 is changed slightly (eg “receiving party” substituted for “claimant”), but with the amended wording this is the position where a paying party makes a successful Part 36 after 1 April 2013 and that offer is not beaten at assessment: “Costs consequences following detailed assessment 36.14 (1) This rule applies where upon completion of the detailed assessment – (a) a receiving party fails to obtain an outcome more advantageous than a paying party’s Part 36 offer; … … (2) … the court will, unless it considers it unjust to do so, order that the receiving party is entitled to – (a) his costs from the date on which the relevant period expired; and (b) interest on those costs.” Subparagraph (a) is much the same as one would expect now (although “from the date on which the relevant period expired” may be worse than now where a successful offer may result in all detailed assessment costs being awarded to the Defendant). The only benefit to the current position is interest on those costs. This is likely to be of little extra incentive. On...

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