- March 29, 2023
Belsner: some further thoughts
The decision of the Court of Appeal in Belsner v Cam Legal Services is now five months old, but is still the source of much debate, so here is a summary of what it did, and did not, decide and as I set out below, much of the judgment was obiter, that is not necessary for … Continue reading Belsner: some further thoughts →
- March 22, 2023
Contentious and non-contentious business
Putting it simply, work done on any non-litigation matter is non-contentious business and work done on litigation matters is contentious, as the names suggest. However, that is too simple. Work done on potential litigation is non-contentious until proceedings are commenced, and at the point of issue, all the work becomes contentious, including the pre-issue work … Continue reading Contentious and non-contentious business →
- November 9, 2022
Fixed costs where there are multiple claimants
In Melloy and another v UK Insurance Ltd, a Circuit Judge in Portsmouth County Court held that where there were two or more claimants in a fixed recoverable costs case, two or more sets of fixed recoverable costs were payable to the claimants’ solicitors. This was a personal injury claim arising out of a road … Continue reading Fixed costs where there are multiple claimants →
- September 12, 2022
Guideline hourly rates: are they now tramlines?
It has been observed that guideline hourly rates are just that – guidelines and not tramlines; in other words the courts are free to depart from them. That view is now barely sustainable following a number of recent decisions, including two in the Court of Appeal.
- August 15, 2022
Civil costs consultation: budgeting and guideline hourly rates
The Civil Justice Council is consulting on a wholesale revision of the civil costs regime; the consultation ends at 12 noon on Friday 30 September 2022. In the last piece, I looked at pre-action costs and the interplay with fixed recoverable costs due to be extended in April 2023. Here, I look at the connected … Continue reading Civil costs consultation: budgeting and guideline hourly rates →
- July 25, 2022
Civil costs consultation: pre-action, portal and protocol costs
Many of the 27,000 civil litigators are blissfully unaware that, from April 2023, most of their workload will be subject to fixed recoverable costs, but that may only be the beginning of a wholesale – holistic in the words of the Civil Justice Council – shakeup of every aspect of the civil costs system. The … Continue reading Civil costs consultation: pre-action, portal and protocol costs →
- April 19, 2022
Solicitor cannot take assignment of client’s case
In Farrar and another v Miller, the Court of Appeal upheld a decision that solicitors could not continue an action that had been assigned to them by their client: “a solicitor acting for a client in legal proceedings may not validly take an assignment of the client’s cause of action prior to judgment.” (Paragraph 51, … Continue reading Solicitor cannot take assignment of client’s case →
- February 7, 2022
2022: all change for civil litigators
In October this year, civil litigators will be introduced to fixed recoverable costs in virtually all civil claims valued at £100,000 or less, and this is likely to be the biggest culture change in their careers. My view is that we should expect £100,000 to become £250,000 within five years. In my recent experience many … Continue reading 2022: all change for civil litigators →
- January 11, 2022
Death and contingent agreements (Part 2): Contingency Fee Agreements and Damages-based Agreements
There is a fundamental difference between Conditional Fee Agreements on the one hand, and Contingency Fee Agreements and Damages-based Agreements (DBAs) on the other hand, in that with Conditional Fee Agreements the charge is still related to the amount of work done, whereas with Contingency Fee Agreements and DBAs that is not the case.
- January 6, 2022
Death and contingent agreements (Part 1): Conditional fee agreement death clause valid: signature heavily limits challenges
In Higgins & Co Lawyers Ltd v Evans, the Queen’s Bench Division of the High Court held that the death clause contained in the standard Law Society Model Conditional Fee Agreement, which allows a firm to terminate the agreement on the client’s death and recover basic charges from the estate, is valid and enforceable.
- November 22, 2021
Signature requirements in conditional fee agreements, damages-based agreements and contingency fee agreements
In my last Dispute Resolution blog, I looked at the signature requirements for solicitors’ bills, both in relation to between the parties’ costs assessments, and solicitor and own client costs assessments. In this blog post, I consider the signature requirements relating to: Conditional fee agreements. Damages-based agreements. Contingency fee agreements.
- November 17, 2021
Signature requirements in solicitors’ bills of costs
In this piece, I look at the signature requirements of solicitors’ bills both in relation to between the parties’ costs assessment, and solicitor and own client costs assessments.
- September 15, 2021
Court of Appeal permission: CPR 52.30 revisited
The Court of Appeal has very recently softened its approach to applications under CPR 52.30, effectively backtracking on two of its own very recent decisions. I first looked at this issue in my blog post, Appeals to the Court of Appeal after refusal of permission.
- August 16, 2021
Injunctions, freezing orders and costs
There have been a number of recent cases on whether costs should be reserved following an interim injunction granted on the balance of convenience. The starting point is that, absent special circumstances, costs will normally be reserved, as at that stage, there is no winner or loser, and the purpose of an interlocutory injunction is … Continue reading Injunctions, freezing orders and costs →
- July 13, 2021
Part 36 strictly applied
Two recent High Court decisions have emphasised that the Part 36 costs consequences will rarely be avoided. Nominal damages of £10 beat claimant’s offer of £1: full Part 36 consequences apply In Shah and another v Shah and another, the High Court upheld the decision of the County Court that the defendants should bear the … Continue reading Part 36 strictly applied →
- June 14, 2021
Costs deadlines: courts getting tougher
Historically courts took a relaxed attitude to deadlines, and it may seem strange to younger members of the profession, but in my working life parties could, and did, simply decide that they were not ready for trial and would tell the court to adjourn matters. That all changed with the introduction of the Civil Procedure … Continue reading Costs deadlines: courts getting tougher →
- April 15, 2021
Are the courts favouring contingency fees?
Contingency fees provoke very different responses from lawyers, ranging from the view that they are the work of the devil, to them being the ultimate tool providing access to justice. As usual, the truth lies somewhere in between, but the direction of travel of recent senior court decisions is definitely to endorse contingency fees, which … Continue reading Are the courts favouring contingency fees? →
- March 15, 2021
Client challenges to bills of costs
Challenges under the Solicitors Act 1974, by former clients in relation to their bills, have been the subject of a number of recent decisions with informed consent being a key issue.
- January 28, 2021
Guideline hourly rates: consultation, COVID-19 and offshoring
On 8 January 2021, the Civil Justice Council (CJC) Working Group on Guideline Hourly Rates published its report for consultation on guideline hourly rates (GHRs). The consultation ends on 31 March 2021. GHRs have not risen since 2010 and the report recommends increases ranging from 6.8% to 34.8% depending on grade and location.
- December 23, 2020
Appeals to the Court of Appeal after refusal of permission
In this blog, I look at the situation where permission to appeal to the Court of Appeal has been refused by a single judge on the papers, and the possibilities of having that decision re-opened.
- October 22, 2020
Conditional fee agreements (Part 2): no win lower fee agreements
The general principles in relation to conditional fee agreements (CFAs) were set out in Part 1, where I considered “no win no fee” agreements in detail. The same principles apply to “no win lower fee” agreements.
- October 14, 2020
Conditional fee agreements (Part 1): general principles and no win no fee agreements
In this first blog I look at the general principles of conditional fee agreements (CFAs), and, in particular, “no win no fee” conditional agreements. In a second blog, I look at “no win lower fee” CFAs, which are a useful and popular method of funding for commercial disputes.
- September 1, 2020
Civil litigation funding agreements: Part 2: damages-based agreements
The single potential benefit of damages-based agreements (DBAs) is that it is a form of out and out contingency fee agreement (see also Part 1), that is taking a percentage of damages, which is available for contentious work, and thus can be used once proceedings have been issued, in contrast to a contingency fee agreement under … Continue reading Civil litigation funding agreements: Part 2: damages-based agreements →
- August 27, 2020
Civil litigation funding agreements: Part 1: contingency fee agreements
Many general civil litigators are unaware of the range of funding options open to clients and lawyers in such proceedings, and tend to stick limpet-like to an hourly rate, win or lose, which is deeply unattractive to most clients, and is not necessarily the most profitable method for the solicitors either.
- July 31, 2020
Litigation friends: duties and procedure (Part 2)
In the last two years, there have been three significant cases involving the court’s powers in relation to litigation friends outside the field of personal injury. My previous blog post considered the first of those cases, which dealt with issues including the role and duties of litigation friends, and conflicts arising between a litigation friend … Continue reading Litigation friends: duties and procedure (Part 2) →
- July 30, 2020
Litigation friends: duties and procedure (Part 1)
As will be seen below, the issue of litigation friends is dealt with in CPR 21, and covers children and protected parties. By definition, children are far less likely to be involved in litigation outside the field of personal injury as they cannot enter into contracts, except for necessities, during their minority, and thus the … Continue reading Litigation friends: duties and procedure (Part 1) →
- June 29, 2020
Insured’s right to choose own lawyer
The issue of whether an individual who has before-the-event (BTE) insurance is forced to use the solicitors nominated by the insurance company, or whether they have freedom of choice to instruct their own solicitor, is a vexed one about which I get a huge number of enquiries.
- June 2, 2020
Who regulates the regulators?
Below I report the decision of the Court of Appeal in Flynn Pharma Ltd and Flynn Pharma Holdings Ltd v Competition and Markets Authority, concerning the circumstances in which a regulator who brings regulatory proceedings and loses should pay the successful party’s costs. This raises the wider question of whether regulators should enjoy virtual immunity from … Continue reading Who regulates the regulators? →
- May 5, 2020
Capped costs in business cases
Here I look at three recent business cases involving capped costs, including the first two cases to be tried in the capped costs list pilot scheme and one in the Intellectual Property and Enterprise Court. Both are part of the Business and Property Courts of England and Wales (B&PCs).
- March 26, 2020
Insolvency round-up March 2020: time extensions, limitation, CE-File, and foreign proceedings
Here I deal with a number of decisions concerning procedural issues of filing and service in relation to insolvency proceedings. In particular, the Courts Electronic Filing System (CE-File) is a source of considerable confusion.
- March 9, 2020
Costs round-up February 2020 (Part 3)
Fixed costs ousted by agreement In Turner v Cole, a regional costs judge held that an agreement between the parties ousted the fixed costs regime.
- March 6, 2020
Costs round-up February 2020 (Part 2)
Qualified one-way costs shifting: defendant can set off against costs awarded to claimant In Faulkner v Secretary of State for Business, Energy And Industrial Strategy, the Queen’s Bench Division of the High Court considered the Kafkaesque issue of whether a defendant failing to set aside a notice of discontinuance could then rely on that discontinuance to … Continue reading Costs round-up February 2020 (Part 2) →
- March 5, 2020
Costs round-up February 2020 (Part 1)
Wasted costs against expert In Thimmaya v Lancashire NHS Foundation Trust and another, a circuit judge made a third party costs order against an expert in the sum of £88,801.68 under section 51 of the Senior Courts Act 1981. The expert, who appeared for the claimant at trial, “was wholly unable to articulate the test to … Continue reading Costs round-up February 2020 (Part 1) →
- February 10, 2020
Costs, fees and 2020 changes round-up (Part 2)
Solicitors’ liens Ryanair liens case goes to Supreme Court Bott & Co Solicitors Ltd have been granted permission to appeal to the Supreme Court by the Supreme Court itself in relation to the issue of solicitors’ liens where a third party (Ryanair) deliberately sent damages to the client, and not the solicitor acting for the … Continue reading Costs, fees and 2020 changes round-up (Part 2) →
- February 3, 2020
Costs, fees and 2020 changes round-up (Part 1)
Contract providing For “all reasonable costs” meant assessment on the indemnity basis In Alafco Irish Aircraft Leasing Sixteen Ltd v Hong Kong Airlines Ltd, the Commercial Court held that a contract specifying that a party was entitled to “all reasonable costs and expenses” of litigation, in connection with preserving its contractual rights, meant that it was entitled … Continue reading Costs, fees and 2020 changes round-up (Part 1) →
- December 6, 2019
Court fee remission (Part 2)
Court fee remission process An application for help with fees, that is to avoid paying a court or tribunal fee altogether, or getting a reduction on the normal fee, is made on Form EX160: Apply for help with fees. The process for applying online is:
- December 5, 2019
Court fee remission (Part 1)
This piece does not deal with court fees themselves, but rather the principles and practices of court fee remissions and recoverability and so on, and the process of seeking remission.
- October 31, 2019
Interim statute bills
Normally a solicitor/client retainer is an entire contract; see Vlamaki v Sookias & Sookias:
- October 3, 2019
Charging interest on disbursements (Part 2)
Charging interest on disbursements recovered from a defendant at the successful conclusion of a case (assuming disbursements paid by solicitors for the claimant) There is an overlap between this heading and the heading of this blog (and that in Part 1), in that the indemnity principle potentially applies, and the ability to recover costs from … Continue reading Charging interest on disbursements (Part 2) →
- October 3, 2019
Charging interest on disbursements (Part 1)
There is no inherent right to charge a client interest on anything until a bill has been delivered. The simplest and cleanest way is to deliver a disbursement–only bill with the standard wording at the bottom:
- August 29, 2019
Small local firms preferred by clients and ombudsman’s advice on good costs service
Here I look at two recent and helpful publications, and given the source of those publications, those are slightly surprising words from me!
- July 26, 2019
Civil litigation summer round-up
Transfer out of Shorter Trials Scheme refused In Sprint Electric Ltd v Buyer’s Dream Ltd and another, the Chancery Division of the High Court refused the claimant permission to transfer an intellectual property claim out of the Shorter Trials Scheme. The court was satisfied that it had power to transfer the case under CPR 3.1(2) … Continue reading Civil litigation summer round-up →
- June 27, 2019
Children, litigation friends and costs
In Barker v Confiànce and others, the Chancery Division of the High Court considered the issue of costs orders against parties who are minors or their litigation friends. It held that there were no special principles preventing a costs order being made and that the court must consider all of the circumstances of the case.
- May 31, 2019
Insolvency round-up May 2019
Insolvency and Companies Court (ICC): new ICC Interim Applications Court On 25 April 2019, the Chancery Guide was updated to include a new chapter on the Insolvency and Companies List, including information, at paragraphs 25.28 to 25.30, on the operation of the new Insolvency and Companies Court (ICC) Interim Applications Court at the Rolls Building, … Continue reading Insolvency round-up May 2019 →
- April 25, 2019
Liens: a never-ending saga
Even though we have had 300 years of case law, there is still great uncertainty about the extent of solicitors’ liens, a subject which has become of much greater importance since the legalisation of conditional fee agreements and the virtual abolition of civil legal aid, as solicitors are now often acting on credit for clients … Continue reading Liens: a never-ending saga →
- April 5, 2019
Costs round-up March 2019
Can amendment amount to discontinuance? In Galazi and another v Christoforou and others, the Chancery Master considered whether the very substantial amendments made to the particulars of claim amounted to a discontinuance of the whole or part of the claim, triggering the default position under CPR 38.6(1) that the discontinuing party is liable to pay the costs … Continue reading Costs round-up March 2019 →
- February 28, 2019
Video courts: judiciary presses pause
Opposition is growing to the government juggernaut of scrapping live courts, even for trials, with the judiciary in particular expressing its clear and certain view that austerity and cost-cutting, not access to justice, are behind the move.
- January 31, 2019
Insolvency round-up: January 2019
In Bayliss v Saxton, the Queen’s Bench Division of the High Court held that section 285(3)(b) of the Insolvency Act 1986 did not apply to committal proceedings for contempt of court on the grounds of interference with due justice.
- January 2, 2019
Pre-action and non-party disclosure
There has been a number of recent cases in relation to pre-action and non-party disclosures.
- November 29, 2018
Security for costs round-up
There have been a number of recent cases in relation to security for costs.
- September 27, 2018
International jurisdiction and extra-territorial issues
In an increasingly global world the issues of international and extra-territorial jurisdiction are becoming increasingly important, as a recent flurry of cases and developments shows.
- August 23, 2018
Notice of discontinuance
Setting aside notice of discontinuance In Advantage Insurance Co Ltd v Stoodley (1) and Trinity Lane Insurance Co Ltd (2), a Queen’s Bench Division Master considered the law in relation to setting aside a notice of discontinuance.
- July 30, 2018
Proportionality and non-financial matters
In three recent cases, the courts have considered how to apply the proportionality test in CPR 44.3(5) in cases where damages are not the main issue, or where no damages are in issue at all.
- June 21, 2018
Costs: he who writes the cheque pays the costs… unless it is a group action
Two recent decisions, one in the Court of Appeal and one in the High Court, considered the incidence of costs where it is less than clear who has “won”.
- May 25, 2018
New Practice Direction from 25 April 2018 The new Practice Direction on Insolvency Proceedings was published on 25 April 2018 and came into force immediately.
- April 27, 2018
Here is a round-up of some recent cases involving limitation.
- March 21, 2018
Part 36 roundup
CPR 36 is the most important, and complicated, rule in the book, and so it is not surprising that there is a torrent of cases with major issues still unresolved. Here I look at no fewer than nine recent decisions at High Court level or above.
- February 22, 2018
Strike out and summary judgment: Saeed and another v Ibrahim and others
In Saeed and another v Ibrahim and others, the Chancery Division of the High Court considered the overlap between the court’s powers to strike out under CPR 3.4 and its powers to enter summary judgment under CPR 24.
- January 24, 2018
Conduct and costs: two recent Court of Appeal cases
Indemnity costs guidance In Whaleys (Bradford) Limited v Bennett and another, the Court of Appeal gave guidance in relation to the correct test when considering indemnity costs. This was not in the context of Part 36.
- December 14, 2017
After the event insurance: roundup of latest cases
In Percy v Anderson-Young, the Queen’s Bench Division of the High Court allowed recovery of an after the event (ATE) insurance premium of £533,017.13, overturning the district judge’s decision to cut it to £82,513.07.
- November 23, 2017
Solicitors Act assessments: interim statute bills and conditional fee agreements
In Richard Slade and Company v Boodia and Boodia  EWHC 2699 (QB) the Queen’s Bench Division of the High Court, in an appeal from the Senior Courts Costs Office, upheld the Cost Master’s finding that interim statute bills must include disbursements.
- October 24, 2017
Applications, injunctions, non-monetary relief and fixed costs
Fast track In relation to the fast track, Jackson LJ proposes no change and the only suggestion, emanating from claimant representatives, was that there should be better provision for the costs of pre-action disclosure applications as recommended by the Court of Appeal in Sharp v Leeds City Council.
- September 21, 2017
The new intermediate track: scope and procedure
This piece does not deal with the costs figures; that is for another piece. As part of his Supplemental Report on Fixed Recoverable Costs, which will be considered by the Lord Chief Justice, Master of the Rolls and the government, Jackson LJ has proposed a new intermediate track.
- August 24, 2017
Part 36: late acceptance by defendant: where are we?
CPR 36 is the most important rule in the book.
- July 31, 2017
Fixed costs report overview
Today Jackson LJ’s Supplemental Report on Fixed Recoverable Costs was published and is available here. This will now be subject to consultation by the government, and so these are proposals at this stage. Whatever comes in is likely to be on 1 October 2018.
- July 27, 2017
Fixed costs pilot
A voluntary two year capped costs pilot scheme for High Court cases valued between £100,000 and £250,000 is due to begin imminently in the London Mercantile Court and the Mercantile, Technology and Construction and Chancery Courts in Manchester and Leeds District Registries.
- June 22, 2017
Fixed costs and offshoring
The Master of the Rolls, giving the Lord Slynn Memorial Lecture on 14 June 2017, had this to say about the effect of electronic filing and online courts:
- May 25, 2017
Fixed costs and the Bar
It is accepted by solicitors and the Bar alike that, as fixed fees are introduced, solicitors become more reluctant to instruct counsel, on the basis that they feel that they are spending their own money, rather than incurring a disbursement, which is then recoverable from the other side in the event of success.
- May 4, 2017
What will happen to the Prisons and Courts Bill?
The general election has caused the Prisons and Courts Bill to be lost, as there was insufficient time for it to get through all of its Parliamentary stages before the dissolution of Parliament at midnight on 2 May.
- April 27, 2017
Part 36 and fixed costs
Practitioners will be familiar with the basic concept of Part 36 and the consequences that flow from that rule.
- March 24, 2017
Fixed recoverable costs for everything: bring it on!
The horizontal and vertical extension of fixed recoverable costs is being considered by Jackson LJ, whose report is due by 31 July 2017.