Legal Cost Specialists

fixed fees

Abuses in RTA claims portal

By on Jul 15, 2011 | 3 comments

Back in January 2010, I raised some concerns about the upcoming new RTA claims process. I wrote: “Much has been made of the fact that the level of fixed fee is set below the average amounts recovered by claimant lawyers under the current rules. Good news for defendants. But, and it may be premature to start looking for problems before we have seen the final rules, one issue looks likely to cause defendants problems unless expressly dealt with in the small print of the new rules. Under the current predictable costs regime, recovery of costs is governed by the level of damages actually agreed. If a case settles at a level within the small claims track the predictable costs scheme does not apply. However, under the new claims process the fixed fee of £400 for stage one, providing notification of the claim to the defendant, is payable at the point when liability is admitted. At this point there will be no medical evidence. The scheme is only meant to apply where the personal injury element of the claim is at least £1,000. The Ministry of Justice’s report recognises that some claims may be valued at the outset as having “reasonable prospects” of exceeding £1,000 but it later becoming clear that they do not. At that stage the claim will leave the process. However, I can see no mention of defendants getting their £400 back. Am I being incredibly cynical in thinking that there will be a very high number of claims that claimant lawyers value as having reasonable prospects of recovering over £1,000 only for these claims to undergo a surprising downwards revaluation or even disappear entirely after the £400 has been paid? There is no time limit under the scheme for obtaining a medical report and defendants may only discover several years down the road that they have been stitched-up in tens of thousands of claims.” Now, FOIL is reported in the Law Society Gazette expressing the following concerns: “FOIL also blamed claimant lawyers for causing delays in the portal process, and called for time limits to be introduced for claimants between stages 1 and 2. It added that insurers should not have to pay stage 1 costs...

Read More

Costs in infant approval hearings

By on May 25, 2011 | 2 comments

Lisa Wright, barrister at 4 King’s Bench Walk, recently wrote a couple of interesting articles in the New Law Journal (18 February 2011 and 15 & 22 April 2001) on costs in RTA infant approval hearings. The second article dealt with costs under the new fixed costs regime under CPR 45.27 to 45.40. The article, when considering hearings to assess damages, stated: “Where the defendant is ordered to pay the claimant’s stage 3 costs, the court can order the stage 1 and stage 2 costs to be paid. CPR 45.38 does not provide for this, however, it is presumed that the court can make such an order given that in adult claims, such costs are paid at the end of each stage (paras 6.18 and 7.61 of the Protocol).” The fact that CPR 45.38 “does not provide for this” picks up on the point I identified when the draft rules were first released (see New RTA scheme rules and win a bottle of champagne). Given the rules were introduced back on 30 April 2010, would it not make more sense for the rules to be updated to fill this lacuna rather than expect judges to have to make it up as they go...

Read More

Fixed costs – Another Jackson myth

By on May 10, 2011 | 1 comment

At this year’s Association of Costs Lawyers’ National Conference, one of the guest speakers, a regional costs judge, observed that the introduction of fixed fees for fast-track personal injury matters was not something that those present needed to be concerned about as most fast-track matters were currently dealt with by way of summary assessment. The logic was presumably that costs lawyers did not currently see much fast-track costs work as this was dealt with by way of summary assessment at the conclusion of a trial and the introduction of fixed fees would therefore make no real difference to costs lawyers’ workloads. It is noteworthy that even a judge with a genuine interest in legal costs related matters should have reached this conclusion. This is much the same mistake that Lord Woolf made with his civil justice reforms. He assumed that the costs of preparing for trial would have to be incurred at some stage in any event and it therefore made sense for such costs to be incurred at an early stage in the hope that this would increase the likelihood and speed of settlement. What he overlooked was the fact that the vast majority of cases settled pre-trial and often with limited disclosure. His front-loading of case preparation meant that a large amount of expensive work is now unnecessarily incurred. Members of the judiciary, inevitably, only see the cases that are litigated and assume that these are typical with a large number of these making it all the way to trial. In reality, of course, the vast majority of cases settle pre-proceedings. For litigated matters, most settle well before trial. Even for those cases that do run close to trial, a high proportion still settle before they actually reach the door of the court. None of these cases are dealt with by way of summary assessment. For all these fast-track claims it is necessary for someone at the receiving party’s end to quantify the costs that have been incurred and then for someone at the paying party’s end to scrutinise the costs claimed. Some of those cases will make it all the way to detailed assessment. For most law costs draftsmen working in the personal injury field, fixed...

Read More

An end to time recording?

By on Feb 24, 2011 | 15 comments

One of Jackson LJ’s proposals is for fixed costs for all stages of all fast-track matters.  He concluded that this would produce savings in its own right as: “Claimant solicitors will no longer have to maintain documentation required for costs assessment”  This is presumably on the basis that it will not be necessary to time record with fixed fees for fast-track matters.  However, won’t solicitors still have to time record pre-allocation as they won’t know which track a matter will be allocated to?  The injuries may be more serious than first thought.  Even if the claimant is happy to run the case on the fast-track, the defendant may raise issues, such as alleging fraud, that takes the case away from the fast-track.  Even if allocated to the fast-track, the matter might be re-allocated at some future...

Read More

RTA Claims Process uncertainty?

By on Jan 10, 2011 | 2 comments

Litigation Funding recently reported on the Motor Accident Solicitors Society annual conference which had heard of problems concerning uncertainty surrounding the RTA claims process. These included whether bus passengers or multi-vehicle accidents are in the process. It’s a while since I looked at the rules in any detail but what is there to suggest that such claims even might be excluded from the process?...

Read More

Major Oxford Study into Litigation Funding and Costs

By on Nov 11, 2010 | 0 comments

Dr Christopher Hodges and Professor Stefan Vogenauer of Oxford University have just published a major international study into litigation funding and costs. The project has already proven influential in contributing to the Review of Civil Litigation Costs in England and Wales conducted by Lord Justice Jackson earlier this year. The authors go on to recommend that, “If governments wish to deliver wider access to justice in those cases where proportionate cost is particularly important, they should introduce tariffs for lawyers’ fees, introduce efficient case management techniques in the civil courts, and devise alternative pathways for dispute resolution that deliver cheaper or more efficient solutions.” The full report is available here:...

Read More