fixed fees

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...

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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...

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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...

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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?...

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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:...

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Fixed costs – "exceptional circumstances"

By on Nov 5, 2010 | 10 comments

The predictable costs regime allows for costs in excess of fixed fees to be allowed in certain circumstances under CPR 45.12(1): “The court will entertain a claim for an amount of costs (excluding any success fee or disbursements) greater than the fixed recoverable costs but only if it considers that there are exceptional circumstances making it appropriate to do so.” The issue of what amounts to “exceptional circumstances” was considered in a recent case by District Judge Wyatt in Carlon v Domino’s Pizza (Birmingham CC 27/8/2010) (judgment available on Lawtel). The case was a relatively routine fast track road accident case except for the fact that the claimant was a minor and an initial psychological assessment suggested that the accident may have been responsible for the claimant developing anorexia nervosa and further investigations were undertaken. The judge concluded that: “I have come to the view that the element of the possibility that there was a connection between her eating disorder or its exacerbation and this accident is and amounts to in itself exceptional circumstances. … [T]he possible connection to a severe eating disorder, particularly one that led to a prolonged period of inpatient treatment, was something that took this case well outside the normal range of orthopaedic and psychological consequences of a road accident that would be otherwise likely to fall within the fast track regime.” The judge was reinforced in his view by virtue of the fact the claimant was a child and it was appropriate to fully investigate this element. Costs in excess of fixed costs were therefore allowed. On the face of it, this decision cannot be criticised. An eating disorder caused by an RTA must be ““exceptional circumstances”. There is, however, one further element that does not appear to have been argued before the judge. Upon further investigation the treating psychiatrist was unable to directly attribute the onset or acceleration of the eating disorder to the accident. The claim therefore settled for £3,950 with, presumably, no element to reflect the eating disorder. This raises an interesting issue of law and one in which there appear to be two schools of thought. The first one is that the reasonableness of work claimed is to be judged...

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