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

Posted by on 21st December 2021 in detailed assessment, disbursements | 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 fees.

The recent decision of costs judge Master Rowley in Gibbs v King’s College NHS Foundation Trust [2021] EWHC B24 (Costs) reached an opposite conclusion.

The Claimant has relied on the decision of HHJ Letham in Ivanov v Lubbe where it was held:

“The core argument is whether it is reasonable to expect a Claimant to use the scheme or alternatively whether this places a burden on the taxpayer that is unreasonable. In this respect I agree with [claimant’s counsel] that there is a loss where fee remission is utilised. The public purse is depleted by the amount that would otherwise have been paid. On this basis there is less in the public purse to devote to the justice system as a whole. Thus, any suggestion that there is not a loss where fee remission is utilised is misconceived. I am satisfied that [claimant’s counsel] is right to characterise the dispute as over who bears the loss, the public purse or the tortfeasor. … [There is] a formidable body of case law that allows the Claimant to legitimately elect to make their claim against the tortfeasor as opposed to relying on alternative sources of funding.”

In that case, it was therefore found to be reasonable for a claimant to pass the cost of the court fee to a defendant.

Master Rowley approached the issue differently:

“In Ivanov, the claimant put the argument in respect of mitigation of loss as being a question of whether the loss should be borne by the wrongdoer or the State.

The claimant’s counsel in Ivanov is said to have described the idea that there was in fact no cost if the fee remission scheme applied as being ‘misconceived’ because there was still a cost to the State where parties litigate. HHJ Lethem agreed with the claimant’s counsel that there was a loss where fee remission is utilised because ‘the public purse is depleted by the amount that would otherwise have been paid.’

As far as I can see, there was no evidence put forward by the claimant’s counsel as to this loss to the State and it was submitted as essentially a matter of common sense. In other words, where court proceedings are commenced, the court will expect to receive a fee in accordance with the Civil Procedure Fees Order 2008 (as amended). If it does not receive that fee, then there is reduced income to the Court Service and that affects the administration of justice overall.

I regret to say that I do not think that is necessarily correct. It seems to me to be equally plausible that, by bringing in a fee remission scheme, Parliament would expect all those who qualify for that remission to use it. After all, the fees often represent a significant sum: here it was £10,000. As such, any calculation made of the number of people being exempt from using court fees by Parliament would be considered prior to the bringing in of the scheme and, where appropriate, when it was adjusted thereafter. To the extent that a person entitled to use the scheme did not do so, that would then be an unexpected lessening of the cost in Parliament’s calculations.

It does not seem to me to be appropriate to conclude that a claimant who uses the fee remission scheme, even though they might have been entitled to oblige the wrongdoer to pay the fee, has caused the State to lose money it was expecting to receive. It is just as likely that such claimants are precisely following a model designed by the State.  A Claimant who pays a court fee they did not have to pay, which they may not recover and which involves some cash flow impact on them or their lawyers seems to me to be a less likely prospect on any Government model and is at least as likely to upset the State’s calculations.”

As to the correct approach:

“If it is assumed that mitigation in respect of damages is akin to mitigating the extent of the costs incurred, has the claimant acted reasonably in this case by not completing a fee remission form but simply paying the court? In the absence of any explanation or evidence in this context, it seems to me that inevitably the question has to be answered in the negative. The assessment of costs must then proceed as if he had acted reasonably … which would mean there being no issue fee paid because a fee remission could have been claimed.

On the facts of the case:

“In my judgment, a party who does not consider whether they are entitled to a fee remission and, thereafter make an application if there is any doubt, risks being unable to recover that fee from their opponent.  If the opponent can demonstrate that the receiving party appeared to fall within the remission scheme, the onus will be on the receiving party to justify why the court fees were incurred. If as here, there is no such justification put forward, the fee should be disallowed under CPR 44.3. Such a party has not incurred the lowest amount it could reasonably be expected to spend. At the very least there has to be a doubt which is to be exercised in favour of the paying party.”

Interesting though this is, we are still left without a binding decision on the issue.

There was a crumb of comfort for the Claimant:

“It clearly would not have been too difficult for the claimant and her solicitors to make an application for fee remission. … In my view, the costs of making an application where the claimant may potentially be entitled to fee remission are recoverable between the parties. The paying party may well take the point when it comes to a detailed assessment and time spent to establish the position, in my view, generates costs which are reasonably incurred in principle.”

However, this element of the decision must be questionable.  Time incurred making an application for fee remission is work incurred in relation to the funding of part of the claim (here, the court fees).  Has this not been dealt with definitively by the Court of Appeal in Motto & Ors v Trafigura Ltd & Anor (Rev 3) [2011] EWCA Civ 1150:

“Cost of funding: Contrary to the Judge’s conclusion, I do not consider that the claimants can recover the costs of preparing and advising on the CFAs, nor do I consider that they can, recover any costs incurred in discussing the litigation with, or taking instructions from, with the ATE insurers”

Equally, where work is undertaken in relation to arranging legal aid, the associated costs are not recoverable on an inter partes basis.  It is not obvious how work undertaken in relation to funding court fees is distinguishable.

Points of Dispute and electronic Bills of Costs

Posted by on 29th November 2021 in detailed assessment | 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 G.

Assessing costs on the indemnity basis

Posted by on 2nd August 2021 in detailed assessment | 0 comments

The recent decision of Louis Dreyfus Company Suisse S.A. v International Bank of St. Petersburg (Joint-Stock Company) [2021] EWHC 1039 (Comm) contains a short passage dealing with the approach on detailed assessment where costs are to be paid on the indemnity basis.

The decision was reported in Costs Law Reports.  (Copies of their latest reported judgments are available free for a short period on their website, where you can also sign up to their monthly newsletter.)

The headnote to this decision included:

“On taxation the costs would be heavily taxed down, even after the application of the receiving party’s presumption that the costs had been reasonably incurred and any doubt was to be given in its favour under CPR 44.3(3).”

However, there is nothing in the judgment itself that refers to there being a presumption that costs have been “reasonably incurred”.

The relevant part of the judgment reads:

“CPR 44.3 and 44.4 provide that where costs are to be assessed on an indemnity basis, the court (1) will not allow costs which have been unreasonably incurred or are unreasonable in amount; (2) will have regard to all the circumstances in deciding whether costs were unreasonably incurred or unreasonable in amount; and (3) will resolve any doubt which it may have as to whether costs were unreasonably incurred or were unreasonable in amount in favour of the receiving party (“the receiving party presumption”).”

It is more than simple semantics to note that there is a crucial distinction between “any doubt” being resolved in favour of the receiving party and whether there is a “presumption” that any costs have been reasonably incurred.  This judgment supports the former (because that is what the rule says) but not the latter.

Interestingly, comments closer to the summary in the headnote were made by Woolf CJ in Excelsior Commercial & Industrial Holdings Ltd v Salisbury Hammer Aspden & Johnson (a firm) [2002] EWCA Civ 879, dealing with the pre-Jackson rules, addressing the distinction between costs on the standard basis and the indemnity basis:

“The differences are two-fold. First, the differences are as to the onus which is on a party to establish that the costs were reasonable. In the case of a standard order, the onus is on the party in whose favour the order has been made. In the case of an indemnity order, the onus of showing the costs are not reasonable is on the party against whom the order has been made.”

It is difficult to see how this properly reflects the wording of the actual rule (whether old or new).  As currently drafted, CPR 44.3 provides:

“(1) Where the court is to assess the amount of costs (whether by summary or detailed assessment) it will assess those costs –

(a) on the standard basis; or

(b) on the indemnity basis,

but the court will not in either case allow costs which have been unreasonably incurred or are unreasonable in amount.

(2) Where the amount of costs is to be assessed on the standard basis, the court will –

(a) only allow costs which are proportionate to the matters in issue. Costs which are disproportionate in amount may be disallowed or reduced even if they were reasonably or necessarily incurred; and

(b) resolve any doubt which it may have as to whether costs were reasonably and proportionately incurred or were reasonable and proportionate in amount in favour of the paying party.

(3) Where the amount of costs is to be assessed on the indemnity basis, the court will resolve any doubt which it may have as to whether costs were reasonably incurred or were reasonable in amount in favour of the receiving party.”

There is no presumption, on either basis, that costs have, or have not, been reasonably incurred.

For example, if a straightforward, low value, contractual dispute has been dealt with by a Grade A fee earner and a QC, there is no presumption on the indemnity basis that this is reasonable.  Conversely, on the standard basis there would be no presumption that this was unreasonable.  It is for the judge on detailed assessment to decide what is a reasonable and what is not.  The “presumption” only comes into play if there is doubt.  Cook on Costs quotes the former Chief Taxing Master Matthews on the issue: “If there I no doubt, there is no difference”.  That is surely correct.

For the vast majority of item-by-item decisions made by a costs judge, whether on the standard or the indemnity basis, there should not be any doubt.  A decision as to what is a reasonable hourly rate, reasonable fees of counsel or reasonable number of hours spent on documents should be clear to the costs judge making the decision (even if not necessarily easily predictable by the parties).  Borderline issues where the “doubt” comes into play should be relatively few.

To the extent to which some costs judges adopt a more generous approach as to what they will allow where costs are being assessed on the indemnity basis, they are, I would suggest, falling into error and not applying the actual wording of the rule.

Costs budgets when costs on the indemnity basis

Posted by on 26th May 2021 in costs budgeting | 0 comments

When is it preferable to have a costs order on the standard basis rather than on the indemnity basis?  Potentially, where a costs management order has been made.

CPR 3.18(b) provides:

 “In any case where a costs management order has been made, when assessing costs on the standard basis, the court will not depart from such approved or agreed budgeted costs unless satisfied that there is good reason to do so”

Although the decision in Barts Health NHS Trust v Salmon [2019] took a different approach, the generally accepted position is that, all other things being equal, a receiving party will recover their costs up to the amount of the last approved budget.

Therefore, for example, if a budget (in respect of estimated costs) is approved at £100,000 to take a matter to trial, and the case settles at trial, if the receiving party has incurred costs of £95,000 they should expect to recover those costs in full.  The exception is where the paying party can identify a “good reason” to depart from the approved budget.  However, crucially, this only applies to an assessment on the standard basis.

If costs are payable on the indemnity basis, CPR 3.18(b) has no application.  On detailed assessment the court will assess the costs on a line-by-line basis applying just the test of whether the court considers the costs claimed to be reasonable.  The receiving party will benefit from the fact that any doubt will be resolved in their favour and proportionality will not apply.  However, the benefit of the doubt conferred by CPR 3.18(b) will not apply if they are within budget.  In the above example, if a court assesses the reasonable costs as being £90,000, that is all they will allow, notwithstanding the approved budget of £100,000. From the paying party’s perspective, there is no “good reason” hurdle to overcome.

It is therefore perfectly possible for a receiving party to find themselves at a disadvantage with an indemnity basis costs order in their favour rather than a standard basis one.  Parties might wish to be careful before they push too eagerly for a costs order on the indemnity basis.

Part 36 offers in detailed assessment – Best v Luton & Dunstable Hospital NHS Foundation Trust

Posted by on 21st May 2021 in detailed assessment, Part 36 | 0 comments

The costs subcommittee of the Civil Procedure Rule Committee (CPRC) is apparently due to consider whether it should be possible to make Part 36 offers in relation to the costs of detailed assessment.

This follows the recent decision of Master Leonard in Best v Luton & Dunstable Hospital NHS Foundation Trust [2021] EWHC B2 (Costs) whereby he concluded a Part 36 offer could not be made in respect of the costs of the detailed assessment proceedings (although Part 36 offers can clearly be made in respect of the costs claimed in the Bill).

It will be a missed opportunity if the CPRC considers this narrow issue alone.

Part 36 offers in detailed assessment proceedings create a unique imbalance between receiving parties and paying parties.

Normally, the Part 36 benefits to claimants will only crystalise if a claimant wins on a Part 36 offer at trial.  In relation to substantive matters, there is the process of disclosure.  By the time a matter reaches trial, and usually long before then, both parties will have received disclosure of all relevant evidence and documents from the other side and will therefore be on a broadly equal footing in terms of considering the reasonableness of any Part 36 offers.  The Part 36 sanctions therefore bite when a defendant has failed to accept a reasonable offer in circumstances where they were in a fair position to judge the reasonableness of that offer.

In detailed assessment proceedings, the receiving party is treated as the claimant for the purposes of Part 36.  However, unlike in substantive proceedings, there is no disclosure process to the paying party of any kind during detailed assessment proceedings.

A paying party is required, for example, to consider the reasonableness of the number of communications and attendances on the claimant without sight of any of those communications or attendance notes.  A paying party is required to consider the reasonableness and quantum of advices from, and conferences with, counsel, often with no information from the Bill or fee notes as to what they related to, much less copies of the advices or attendance notes themselves.  And on it goes.

Paying parties are at a material disadvantage to the usual position that arises when Part 36 offers are made.

Rather than focus on the narrow issue of whether the scope of Part 36 should be extended in detailed assessment proceedings, surely the question is whether the continued existence of Part 36 offers can be justified in the absence of disclosure.

Cost of travelling to conferences

Posted by on 14th May 2021 in detailed assessment | 0 comments

As far back as 2005, Lord Justice Brooke observed in Black v Pastouna & Anor [2005] EWCA Civ 1389 that:

“It is incumbent on those advising parties appearing before this, or any, court to take all the steps they can in accordance with CPR Rules 1.1 and 1.3 to reduce the cost of the proceedings. This includes taking advantage of such cost-saving facilities as video-conferencing whenever they are available and it is appropriate to use them.”

It is fair to say that this was probably observed more in the breach than the observance.

Eighteen months ago, many solicitors would have been astounded at the suggestion that it might be possible to hold a conference with the client and/or counsel and/or experts other than around a table with everyone in attendance. As a consequence, £1,000s of additional costs were routinely incurred in travel time and costs for each conference.

Now, conferences, JSMs, and even full trials, are routinely being conducted remotely.

It will no longer be plausible to argue that a conference needs to be face-to-face to be effective.

However, the technology to make this happen has not been invented in the last eighteen months. Its existence was recognised in 2005. The technology has been in most people’s pockets for at least the last decade.

It is not really much of an excuse to argue that it is only because of Covid-19 that solicitors realised what was possible and available.

For any existing, or future, claims for costs, receiving parties are likely to face an uphill struggle justifying the cost of travel to conferences.

Costs podcast

Posted by on 12th May 2021 in Legal Costs | 0 comments

The latest podcast from the Practico “Costs chat with friends” series features Andrew Hogan and covers a number of interesting costs issues.  Available via:

Video – https://youtu.be/JluOwGBASyU

Audio Soundcloud – https://soundcloud.com/user-144902971/2021-05-05-costs-chat-with-friends-andrew-hogan-with-jeremy-morgan-qc-and-andy-ellis

Audio Spotify  – https://open.spotify.com/episode/4xffxvZwu6CN2l4RbCgkc1?si=383bfae2ecbc4a3b

Audio iTunes https://podcasts.apple.com/gb/podcast/practico-the-podcost-series/id1445931706#episodeGuid=tag%3Asoundcloud%2C2010%3Atracks%2F1046097754

A pleasant and convenient way to pick up some free CPD points.

Guideline Hourly Rate Consultation

Posted by on 31st March 2021 in hourly rates | 1 comment

The Civil Justice Council’s consultation on Guideline Hourly Rates (GHRs) ends today.

One of the questions put out for consultation was whether the N260 for summary assessment and the information provided in a formal Bill of Costs for detailed assessment should require the signatory to specify the location of the fee earners who carried out the work.

This appears to have been prompted by concerns raised in the previous 2014 Foskett report into GHRs that firms were charging for work at their Central London office rates, while much or all of the work was actually carried out in regional or outsourced offices.

The wording of any proposed rule change remains to be drafted, but it is difficult to see how an amendment requiring the location of the fee earners carrying out the work to be specified would only be relevant for work undertaken in a regional/outsourced office.

A statement that all work was undertaken in the City would clearly be fundamentally inaccurate if 50% of the work was undertaken from a shed at the bottom of a fee earner’s garden in Brighton.

It would also be illogical to require an N260/Bill of Costs to specify if work was undertaken from a regional/outsourced office but for there to be no matching requirement to make it clear if work is undertaken from a home office.

The traditional reason for differing GHRs for different geographical locations is:

  1. At least in the case of City firms and, to an extent, Central London firms, the recognition that the work they undertake is normally of a more specialised nature than that of firms practising elsewhere.
  2. The overheads (such as office rental, cost of support staff, etc) will vary depending on the location of the firm.

To the extent to which the latter of these applies when comparing the work of a personal injury firm based in central Manchester compared to a personal injury firm based in Skegness, how much more must this apply when the work is undertaken by a fee earner working from home with no office rental cost to the firm and, usually, much lower additional overheads?

Home working, at least part-time, is not an entirely new phenomenon, but Covid-19 has pushed the issue to the forefront.

The suggested amendment to the information required in an N260/Bill of Costs, would produce a logistical nightmare if applied literally.  Fee earners would need to record, and the N260/Bill of Costs reflect, whether work was undertaken in an office or at home.  There would be no logical reason not to also record whether the work was undertaken on the train or on a beach in Florida whilst on holiday.  How much more complex would an N260/Bill of Costs become where work has been undertaken from multiple-locations during the life of the case?

To what extent would a court on assessment then apply the updated GHRs?  Would a premium rate be appropriate if work is undertaken from a bespoke designed home-office as compared to a kitchen table?  Are higher rates appropriate if a fee earner is working in First Class on the train as opposed to slumming it in Second?  Are solicitors entitled to recover higher rates if they work from home and their home is a posher part of the country?

The current consultation mentions the fact that it was suggested the report be paused because of the effect Covid-19 was having on the business models of solicitors’ firms.  The report’s response to this was:

“It was not within our remit to pause the review. Nor did we believe it to be necessary or appropriate. We have taken this factor into account in our recommendation for a further review within a relatively short period of time. … Such future review should take into account changes in working practice brought about by new technology, the sequelae of the Covid-19 pandemic and the HMCTS reform programme.”

To an extent, the current consultation is proposing a sticking plaster solution to a fundamental change in the way the legal profession works.

However, another way of looking at the issue is to suggest that Covid-19 has done no more than highlight the outdated geographical approach to GHRs.  The horse bolted long before Covid-19 and not just because of homeworking.

Claims management company, trade union and insurer referrals broke much of the geographical link between clients and their solicitors many years ago in the field of claimant personal injury work.  Insurer panel work broke the link for large volumes of other work.  The destination for heavy commercial work is largely driven by where the firms are located, as opposed to the client.

Is there now any reason why the choice made by a client as to the geographical location of the solicitor they instruct should have any impact on what a paying party is liable for?  Should the solicitors’ choice as to where they open an office have an impact?  As Kerry Underwood has noted:

“Now lawyers and everyone else should be free to have offices wherever they want, but how can there be any justification now for a paying party to pay for very expensive London rents and salaries? …

Am I suddenly worth less because I am sitting in an office in Wellington in the Western Cape rather than in Hemel Hempstead?

What hourly rates do I charge for my colleagues sitting with me here in the office in South Africa?

If I am working on a file and I travel from Hemel Hempstead to the Western Cape via Qatar, as I have just done, do I charge different rates depending on where I happen to be?”

The only remaining justification for differential GHRs, other than to reflect the experience of the fee earner, is to acknowledge the widely different levels of complexity in the work solicitors undertake.  Oddly, the working group’s initial report does not do much more than address this in passing in the context of London GHRs:

“The working group concluded that the proper approach to London 1 and London 2 was to re-define London 1 by nature of work by centrally based London firms, rather than by geographical location in the City, and to use the BPC data as the recommended GHRs for such work.  London 1 would primarily be for very heavy commercial and corporate work, whether undertaken by firms geographically located in the City or central London.  London 2 would be for all other work carried out by firms geographically located in either the City of London or the area at present covered by London 2.”

The end result will be updated GHRs that provide one set of figures (even allowing for the fact they are guidelines only and no more than a starting point) for matters as diverse as routine low value personal injury claims (that are not subject to fixed fees), complex clinical negligence matters and heavy commercial disputes.  Surely the way forward is to scrap geographical differences and provide GHRs based on the broad nature of the litigation being undertaken.

25% uplift to Guideline Hourly Rates to reflect inflation

Posted by on 10th February 2021 in hourly rates | 0 comments

The decision of His Honour Judge Mark Pelling QC in ABS Company Ltd v Pantaenius UK Ltd & Ors [2020] EWHC 3720 (Comm) has already generated a certain amount of interest in relation to his comments as to the appropriate hourly rates to allow in a summary assessment.

The underlying claim proceeded in the shorter trial scheme and concerned the costs of repairing a yacht under an insurance policy.  The claim settled for €244,000.

The comment which has generated interest is:

“There are at least two points which need to be made in relation to grade rates under the guideline rate scheme. First of all, the rates are significant out of date. They were fixed in 2010 and they, therefore, reflect the position as it was in 2010, not as it was in 2020. … The conventional approach in relation to guideline rates is to uplift them by about 25 per cent in order to reflect the effects of inflation on the figures previously arrived at.”

It is difficult to know exactly what to make of this, although receiving parties will no doubt seek to rely on it.

If this is the conventional approach, when did it develop?  Presumably not in 2011.  Did it only develop in 2020 and, if so, what was it before?

What does “conventional approach” mean?  Was the judge taking judicial notice that this is what judges up and down the country, whether County Court, High Court, Senior Courts Costs Office, Admiralty Court, etc, all routinely apply?  If so, the lengthy Civil Justice Council working group report on amending Guideline Hourly Rates, now out for consultation, could have been significantly shorter.  As it is, the Civil Justice Council working group certainly did not suggest that this was their research revealed into what is allowed on assessment.

The fact that this decision has been reported as “Legal News” suggests that these comments do not simply reflect what we all already knew judges to be doing.

As it was, this case was proceeding in the Business and Property Court.  Perhaps the comment was intended to simply reflect the judge’s experience of what was typically allowed in that court.  However, this then raises the question as to what extent should GHRs be departed from to reflect complexity.  If, in 2020, the Business and Property Court sticks fairly rigidly to GHRs but just adds an element for inflation, then this decision may be rather less favourable to receiving parties then in initially appears, at least so far as more complex litigation is concerned.

In fact, the judge commented:

“it has always been the case that specialist solicitors in specialist areas of activity should recover an uplifted fee to reflect that specialism”

It is entirely unclear from the judgment as to what is the interplay, if any, between the need to reflect inflation since 2010 and the need to reflect specialism.  Matters are not helped by the fact that the judgment does not specify what rates were claimed or actually allowed.

Requirement to serve costs estimate

Posted by on 1st February 2021 in costs budgeting | 0 comments

PD 28 para.6.1(4) reads:

Attention is drawn to the Costs Practice Direction, Section 6, which requires a costs estimate to be filed and served at the same time as the pre-trial check list is filed.”

Naturally, it is therefore sensible to refer to the Costs Practice Direction to see exactly what it has to say on the subject of costs estimates.

Unfortunately, the Costs Practice Direction ceased to exist in 2013 when the Jackson costs reforms were introduced.

The closest equivalent to Section 6 of the Costs Practice Direction is now found at PD 44 paras.3.1 to 3.7.  However, that deals with formal costs budgets rather than the earlier requirements relating to costs estimates.

I wonder how many more years will pass before the CPR is updated to remove erroneous references to the Costs Practice Direction.