Legal Cost Specialists

Posts by GWS Law

Electronic bill of costs

By on Jan 17, 2022 | 0 comments

The “new” electronic bill of costs has now been around long enough for a clear view to be formed as to its advantages and disadvantages. However, as a starting point to judging its success, it is legitimate to look back at what Lord Justice Jackson stated the express aim of a new electronic bill should be in his Final Report: “There are three requirements which have to be [emphasis added] satisfied: (i) The bill must provide more transparent explanation than is currently provided, about what work was done in the various time periods and why. (ii) The bill must provide a user-friendly synopsis of the work done, how long it took and why. This is in contrast to bills in the present format, which are turgid to read and present no clear overall picture. (iii) The bill must be inexpensive to prepare. This is in contrast to the present bills, which typically cost many thousands of pounds to assemble.” Scoring these in turn: (i) 3/10 – The majority of electronic bills do provide more detail as to what and when work was done (in part because many bills now list every single letter, email and telephone call as individual items, often with a brief description of the purpose of the communication). There is nothing within the new electronic bill that assists as to the “why”. (ii) 2/10 – The electronic bills do provide various summaries (eg by phase, task, activity). Again, this does nothing to assist in the “why”.  Further, other than grouping work by phase, there is nothing within the new format that assists in giving an overall picture.  Indeed, the fact that even a relatively large traditional bill might have run to one hundred items plus schedules, whereas a similar electronic bill might run to thousands of entries, tends to obscure rather than throw greater light on the overall picture. (iii) 0/10 – No comment...

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Counsel’s brief fee where case settles early – Hankin v Barrington

By on Jan 12, 2022 | 1 comment

There used to be a very old rule whereby counsel was entitled to their full brief fee once the brief had been delivered even if the case settled before the date fixed for the hearing. This is no longer the case. A recent example of the correct approach is to be found in the decision of Deputy Master Campbell in Hankin v Barrington & Ors [2021] EWHC B1 (Costs). Where a case settled early there would “need to be a re-negotiation between counsel’s clerk and instructing solicitors”. A brief fee of £125,000 plus VAT has been agreed by the Claimant’s solicitors with their Leading Counsel in respect of a matter listed for a 13 day trial. The claim concerned a severe head injury pleaded at over £3 million with liability and quantum in dispute. The trial was listed to commence on 15 March 2021. The brief was delivered to Leading Counsel on 22 February 2021. The claim settled by way of mediation on 24 February 2021 (although the Consent Order was not approved until 2 March 2021). £15,000, of the £125,000, was attributed to Leading Counsel’s fees for attending the mediation. This amount was not disputed by the Defendant paying party. The balance of £110,000 was claimed in full as the brief fee. The matter had been subject to a cost management order. At the detailed assessment, the Claimant conceded (in what was described by the Deputy Master as a “sensible concession”) that the fact of the matter had settled pre-trial amounted to a “good reason” under CPR 3.18(b) to depart downwards from the last approved budget. The brief fee had been calculated, at least in part, on Leading Counsel’s hourly rate of £550. The Deputy Master was of the view that such a rate was “higher than that allowed for these types of catastrophic injury cases which come before the Costs Judges” and was “too high”. The deputy Master decided that the starting point as to what would have been a reasonable brief fee was £75,000. The Deputy Master then decided what further reduction should be made to that amount to reflect the fact that the trial did not take place. The Deputy Master was of the view...

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Extension of fixed costs

By on Jan 6, 2022 | 0 comments

The Ministry of Justice (MoJ) recently announced that it intends the extension of fixed recoverable costs in most money cases worth up to £100,000 to come into force from October 2022. This is, of course, subject to the Civil Procedure Rule Committee redrafting CPR 45 in time.  This itself is a significant undertaking, particularly as “the policy view is to commence a complete re-draft of [it] to simplify and streamline the rules”. As with the implementation of other fixed costs regimes, the new rules will apply to those cases where the accident or cause of action arises after the implementation date, or in disease and equivalent cases where no letter of claim has been issued before the implementation date.  So, this will not be retrospective. The fast-track will be expanded to include “intermediate” money claims valued between £25,000 to £100,000 where the trial should not last longer than three days with no more than two expert witnesses giving oral evidence for each party. Mesothelioma/asbestos, complex personal injury and professional negligence, actions against the police, child sexual abuse, and intellectual property will all be excluded from intermediate cases. It is easy to make too much, or too little, of these changes. The greatest impact is likely to be felt outside the world of personal injury.  A very large number of consumer contractual disputes, commercial claims and more routine professional negligence claims will become subject to fixed fees.  There are two possible ways this may impact the market. Firstly, and no doubt this is the hope of the MoJ, solicitors may increasingly offer their clients fixed fee arrangements broadly in line with the fixed recoverable costs.  This should lead to firms streamlining their processes and changing their approach to litigation.  (There is little point spending two hours drafting a clever letter arguing with the other side over a procedural point if you will not get paid any extra for it.)  This may mean less profit per case.  On the other hand, if the cost of litigation becomes cheaper and more predictable, this may lead to an increase in the number of claims being brought.  This may mean more work, not less. On the other hand, if solicitors remain wedded to the...

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Recoverability of court fees where fee remission available – Gibbs v King’s College NHS Foundation Trust

By on Dec 21, 2021 | 0 comments

Significant costs, and much valuable court time, is taken up re-arguing identical points of principle in costs litigation due to the absence of a binding authority.  So it is with the issue of the recoverability of court fees. An example is where a claimant pays court fees and subsequently seeks to recover those from the defendant in circumstances where the claimant was of limited means and would have been entitled to a fee exemption as part of the fees remission scheme.  Is it reasonable for a claimant who is or may be entitled to court fee remission to forego that benefit and pass the costs of the court fees onto a defendant as part of a claim for costs? There was recently an interesting blog post from costs barrister Andrew Hogan setting out the argument from a claimant’s perspective.  The key arguments included: As a matter of legal principle, a claimant is entitled to require a defendant wrongdoer to pay for the damages caused by their wrongdoing and to refuse other forms of support or provision which would have the practical effect of reducing the defendant’s liabilities. In the context of mitigating damages, the case law is against the argument that a claimant is obliged to claim state support to mitigate a wrongdoer’s liability as the claimant had a right to claim damages from the wrongdoer without any requirement to mitigate her loss by reliance on the public purse. It is reasonable for a claimant to prefer self-funding and damages rather than provision at public expense, on the simple ground that he or she believes that the wrongdoer should pay rather than the taxpayer and/or council tax payer. In other words, it is not open to a defendant to say that a claimant who does not wish to rely on the State cannot recover damages because he or she has acted unreasonably. The reason why there is a fee remission scheme contained in the Civil Proceedings Fees Order is to increase access to justice for indigent litigants. It is not there to provide a windfall for the insurance industry, nor to deprive the courts of their proper fees, where there is an insured defendant well able to pay those...

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Points of Dispute and electronic Bills of Costs

By on Nov 29, 2021 | 0 comments

A (minority) of electronic Bills of Costs that I see follow the Association of Costs Lawyers’ template e-bill. This Bill enables Points of Dispute to be incorporated directly into the electronic spreadsheet. For certain Bills, there may be advantages to incorporating Points of Dispute into the Bill, but I usually prepare Points of Dispute as a separate paper document.  Often, when this happens, the other side’s Replies furiously complain about the failure to include the Points of Dispute within the e-bill. This is curious. The ACL e-bill is not the official model electronic bill.  That is Precedent S (v2.0.1).  Parties are free to use “another spreadsheet format” so long as it complies with various mandatory requirements.  However, Precedent S is the approved model.  Precedent S does not have a column for incorporating Points of Dispute.  It was therefore not anticipated by the rule makers that Points of Dispute are to be incorporated into the electronic Bill. As to Points of Dispute, PD 47 para.8.2 states: “Points of dispute must be short and to the point.  They must follow Precedent G in the Schedule of Costs Precedents annexed to this Practice Direction, so far as practicable.” Precedent G is not an electronic spreadsheet.  It is clearly intended to be a paper document. Incorporating Points of Dispute into an electronic Bill is not following Precedent G.  Incorporating Points of Dispute into an electronic Bill is, on the face of it, in breach of the rules and would render the Points of Dispute defective.  No doubt, to the extent to which a court finds a combined Bill/Points of Dispute helpful, they would not take issue with the failure to follow Precedent G.  It would certainly be wholly unattractive for a party who had used the ACL e-bill to then object to Points of Dispute being incorporated into the bill. However, it is wholly misplaced for a party who fails to utilise Precedent S to then complain that the other party has followed the mandatory requirement to use Precedent...

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