Failing to agree retainer terms leads to contractual mess
In Fenchurch Advisory Partners LLP v AA Ltd (formerly AA plc), the court considered a number of issues: Whether the parties had entered into a binding contract; If so, whether AA’s obligation to pay what is described as a ‘success fee’ was triggered; and If there was no binding contract, was there an implied contract … Continue reading Failing to agree retainer terms leads to contractual mess
Libyan Investment Authority and others v King and others: some cautionary pointers regarding evidence in support of assets, in the context of security for costs applications
When is USD 67 billion and an £11 million Mayfair property not sufficient to defend an application for security for costs of £1.9 million? When the evidence provided to support those assets isn’t worth the paper it is written on. The case of Libyan Investment Authority and others v King and others provides an interesting … Continue reading Libyan Investment Authority and others v King and others: some cautionary pointers regarding evidence in support of assets, in the context of security for costs applications
Is commercial litigation going green? Environmental and greenwashing claims and how they will shape the law
The Chancellor of the High Court, Sir Julian Flaux, delivered the 2022 Combar lecture on 16 November 2022, in which he stated that the “commercial landscape is changing, and the law will need to develop with it”. Climate litigation has been tracked globally by the London School of Economics and Political Science (LSE), who reported … Continue reading Is commercial litigation going green? Environmental and greenwashing claims and how they will shape the law
Association of Costs Lawyers’ annual conference 2022
Lord Justice Birss is a man with a lot of influence over the world of costs right now. Not only is he the Deputy Head of Civil Justice, but he also chairs the Civil Procedure Rule Committee and the Civil Justice Council’s (CJC) current costs review. So he had a lot to talk about when … Continue reading Association of Costs Lawyers’ annual conference 2022
Costs budgeting must stay, but change required
A different costs system with digitisation, vulnerable court users and a properly functioning civil justice system at its heart is the goal of a Civil Justice Council’s (CJC) working party, which recently closed its wide-ranging consultation on areas for possible reform. As the group of lawyers with the most direct experience of the issues, the … Continue reading Costs budgeting must stay, but change required
The government’s consultation on mediation and future engagement
In July 2022, the Ministry of Justice (MoJ) released a consultation on Increasing the use of mediation in the civil justice system, which outlines proposals for mediation to be a compulsory element of all small claims track County Court proceedings. This would extend to all claims under £10,000 that were in the small claims track … Continue reading The government’s consultation on mediation and future engagement
The Association of Costs Lawyers Annual Conference: the survey results are in
Last November, The Association of Costs Lawyers (ACL) held its first in-person conference since the onset of the pandemic. Whilst it was of course nice to actually converse with colleagues without them being on a screen, it also gave costs lawyers the opportunity to exchange views on the directions of costs law and also do … Continue reading The Association of Costs Lawyers Annual Conference: the survey results are in
Association of Costs Lawyers Annual Conference: Further costs reform in the offing
For all the costs reform we have seen over the past two decades, there remains plenty of scope for more, and the Master of the Rolls, Sir Geoffrey Vos, last month made clear his intention to take this forward – and potentially in a radical way. Giving the keynote address to the Association of Costs … Continue reading Association of Costs Lawyers Annual Conference: Further costs reform in the offing
Costs capping orders: a revival?
Costs capping orders (CCOs) are a rare beast. Their exceptionality has recently been confirmed in Thomas and others v PGI Group Ltd, in which it was accepted that since the new world for costs began on 1 April 2013, not a single such order under CPR 3.19 has been made.
Banging the drum: proportionality and reasonableness of estimated costs in a costs budget
It may appear tedious to keep the drum banging about proportionality and reasonableness, but it is important to understand these concepts whilst considering organic growth and development in costs law and practice. This is especially true with changes such as the recent ratification of the revisions to Guideline Hourly Rates.
Can’t pay? The court will make the order anyway. The march of the payment on account goes on
The Debt Respite Scheme introduced as part of COVID-19 related regulations last year will not protect a party from being ordered to make a payment on account of costs. The Axnoller v Brake litigation has provided several judgments in 2021. However, rather than analysing the most recent judgment at the time of writing (providing hard … Continue reading Can’t pay? The court will make the order anyway. The march of the payment on account goes on
Normal costs consequences (and beyond?)
All civil litigation lawyers tell their clients at the outset of litigation that (a) it is an expensive business and (b) the loser generally pays for it all. This is, after all, enshrined in CPR 44.2(2): “(a) The general rule is that the unsuccessful party will be ordered to pay the costs of the successful … Continue reading Normal costs consequences (and beyond?)
Budget revision due to “significant development” requires planning and forethought
Despite the prolific number of published articles providing help and guidance in relation to costs budgeting, cases still arise where it is necessary to be reminded about some of the practical measures that can be considered to avoid loss. Reasons for failure to file budgets on time, ensure they cover the work and cost that could … Continue reading Budget revision due to “significant development” requires planning and forethought
A Part 36 offer is the best method of protection during costs assessment proceedings
The case of Mullaraj v Secretary of State for the Home Department has provided further judicial comment that a paying party should not expect to obtain a different order for costs at the conclusion of a provisional assessment hearing simply by relying on CPR 47.20(3)(b) when the paying party hasn’t beaten any previous offers made.
Why might parties be resistant to ADR in costs matters?
There are differences between substantive litigation and costs litigation which are critical to explaining why parties might be resistant to alternative dispute resolution (ADR) in costs matters. The primary difference is that in the costs litigation the liability for substantive costs has already been determined and the paying party is already feeling the pain of … Continue reading Why might parties be resistant to ADR in costs matters?
Cycles in the sand?
In Best v Luton and Dunstable Hospital NHS Foundation Trust, a clinical negligence case, the defendant accepted the claimant’s Part 36 offer of £475,000 to settle the costs. Costs of assessment were to be determined a month later, on 10 November 2020. That hearing went ahead virtually, before Master Leonard. At the conclusion of the … Continue reading Cycles in the sand?
Assessment of fees under the Solicitors Act 1974: Masters v Charles Fussell and Co LLP
The thorny issue of a client’s rights to a Solicitors Act 1974 assessment of fees has raised its head again recently in Masters v Charles Fussell & Co LLP. Quite rightly within that statute are timelines or limits on the client’s rights to such an assessment. A client cannot reasonably turn around months, or even years, after the event … Continue reading Assessment of fees under the Solicitors Act 1974: Masters v Charles Fussell and Co LLP
One third of costs lawyers “busier than ever” despite COVID-19
Despite the very many challenges of the COVID-19 pandemic, many costs lawyers are reporting that they are busier than ever. I am also pleased to report that the Association of Costs Lawyers’ (ACL) latest survey also found that the profession is becoming increasingly comfortable with the electronic bill of costs. Some 126 costs lawyers (approximately … Continue reading One third of costs lawyers “busier than ever” despite COVID-19
The benefits of Part 36: all or nothing or some?
As a costs lawyer, one of the topics I like to bore my solicitor clients with is Part 36 and its wider implications. Used correctly, a well-thought-through approach to Part 36 offers can see early resolution of disputes and considerable costs savings, and in the absence of a resolution a well-pitched Part 36 offer can … Continue reading The benefits of Part 36: all or nothing or some?
The costs dilemma in claims against multiple defendants
While the general rule under CPR 44.2 is that the unsuccessful party should pay the successful party’s costs, the court may make a different order. Further, the consequences of CPR 38.6 may lead to a departure from this general rule. Sometimes it is difficult to establish whether there has been a successful or unsuccessful party, … Continue reading The costs dilemma in claims against multiple defendants
The waning relevance of the guideline hourly rates
On 16 September 2020, Practical Law Dispute Resolution reported that the Civil Justice Council (CJC) established a Working Group, chaired by Stewart J, to conduct an evidence-based review of the basis and amount of the guideline hourly rates (GHRs). The establishment of the Working Group was swiftly followed by a “request for evidence”, with the … Continue reading The waning relevance of the guideline hourly rates
Costs management: “teeing off” for the autumn
We have been living with budgeting and costs management for over seven years. There have been some unpleasant growing pains as practitioners have learnt the sometimes harsh reality of the significance of the rules, and a failure to comply with them. I have been surprised that, whilst practitioners have adjusted to the need of budgeting, … Continue reading Costs management: “teeing off” for the autumn
Costs capping and questions of interest: Marbrow v Sharpes Garden Services Ltd
Costs professionals regularly receive questions about certain aspects of inter partes assessments, such as the amount of recoverable interest and myriad issues surrounding costs budgeting. Most will have ready answers. However, there remain areas where even the most experienced of those in our field require clarification. Master Gordon-Saker’s judgment in Marbrow v Sharpes Garden Services … Continue reading Costs capping and questions of interest: Marbrow v Sharpes Garden Services Ltd
Ensure your evidence, costs information and options from day one
As result of the new Solicitors Regulation Authority (SRA) Standards and Regulations issued in November 2019, which replaced the SRA Handbook, solicitors are required to comply with paragraph 8.7 of the SRA Code of Conduct for Solicitors, RELs and RFLs and paragraph 7.1 (c) of the SRA Code of Conduct for Firms. In addition, there … Continue reading Ensure your evidence, costs information and options from day one
A costs lawyer’s guide to the SCCO during COVID-19
The Senior Courts Costs Office (SCCO), like all courts, has been affected by the COVID-19 pandemic and subsequent lockdown. As with many other courts, the SCCO is doing its level best to keep the wheels of justice turning, by embracing remote hearings, electronic filing, and new practices. The court is coping well, likely assisted by … Continue reading A costs lawyer’s guide to the SCCO during COVID-19
Remote hearings in costs proceedings: the new normal?
The grim reaches of COVID-19 are affecting all corners of society in a way that few could have imagined even 12 weeks ago. With a vaccine deemed unlikely to be readily available this year, the mantra we will be getting used to over the next few weeks relates to the need to create a “new … Continue reading Remote hearings in costs proceedings: the new normal?
COVID-19 and the impact on costs lawyers
As we all attempt to navigate the changes to our world at present and adjust to the challenges presented, it is clear that everyone has been, and continues to be, affected by the outbreak of the 2019 novel coronavirus disease (COVID-19).
Anthony v Collins and the need to get the retainer right
Until the indemnity principle disappears, there will always be the need to make sure that the retainer between solicitor and client is clear. This was again highlighted in the recent judgment of Deputy Master Friston in Anthony v Collins.
SRA Code of Conduct: costs implications for solicitors
Skimming through the SRA Code of Conduct for Solicitors introduced in November last year, I am tasked with considering any costs implications thereof. This is not something that I have had to consider before, as knowing there was/is a code, and merely checking the relevant provisions when referenced, would usually have been enough for a … Continue reading SRA Code of Conduct: costs implications for solicitors
Guideline hourly rates: time for a review
The guideline hourly rates (GHR) are coming up to an unwelcome ten year anniversary since the last time they were updated.
Approval of budgets
With its introduction as part of the Jackson reforms in April 2013, costs budgeting was intended to be used as a tool to streamline the costs procedure in litigation by active court management of parties’ costs from an early stage. In theory, if a receiving party litigates within an approved costs budget, only those costs … Continue reading Approval of budgets
The electronic bill of costs: friend or foe?
Anything electronic has always been controversial and can leave people feeling excluded. Certainly it seems that this is how the vast majority of practitioners feel when looking in on the new electronic bill of costs.
Flight delay costs assessments: Senior v Blue Air
As another summer draws to a close we can all recall the newsworthy computer glitches and strikes which caused a great many flights to be delayed or cancelled, causing disruption and inconvenience to thousands of travellers.
Costs budgeting: how is it working?
There has been a noticeable rise in the number of unhappy clients challenging their solicitors’ bills, particularly in personal injury cases, at least to judge by various rulings from the County Court right up to the Court of Appeal (Herbert v HH Law).
The importance of understanding basic costs principles
It is bewildering when it appears that what should be a fundamental and straightforward understanding of law and practice nevertheless generates arguments before the court, with a consequent expenditure of substantial time and resources. One of these fundamental elements is for a lawyer to know not only what they can charge but also what to … Continue reading The importance of understanding basic costs principles
Testing the electronic bill of costs at court
It has been some time since the electronic bill of costs has been compulsory and those that have been prepared this way are beginning to surface at court. Although I have not personally had the pleasure of testing one yet, I did have an interesting opening point in Oxford County Court recently and I have … Continue reading Testing the electronic bill of costs at court
Knight and another v Knight and others: Part 36 offer imposing costs conditions invalid
A Part 36 offer (pre-issue) which imposes a condition as to costs is not a valid offer, HHJ Matthews (sitting as a High Court judge) held in Knight and another v Knight and others.
Front and centre: Allen v Brethertons LLP and the status of costs lawyers
Costs lawyers may generally operate behind the scenes, but a recent case in the Senior Courts Costs Office provides a useful reminder of our professional status and the important role we play in the resolution of costs disputes.
Solicitor/client success fees and Herbert v HH Law Ltd
The ongoing saga surrounding personal injury firms’ tussles with costs recovery specialists has resulted in some important guidance for solicitors on permissible fee arrangements. The implications on the charging structures for the sector could be profound, especially in respect of conditional fee agreements (CFAs) and the charging of success fees.
New Practice Direction 51W: two-year voluntary capped costs list pilot scheme
In November 2016, the then Jackson LJ was commissioned by the Lord Chief Justice and Master of the Rolls to explore the possibility of extending the fixed recoverable costs regime with the aim of promoting transparency in civil litigation and access to justice for litigants. This was not a task undertaken lightly, with Jackson LJ … Continue reading New Practice Direction 51W: two-year voluntary capped costs list pilot scheme
Adding costs of previous unsuccessful claim: Playboy Club London Ltd v Banca Nazionale del Lavora SpA
In Playboy Club London Ltd v Banca Nazionale del Lavora SpA, leave was given to amend particulars of claim to add the adverse costs of a previously unsuccessful related negligence claim involving the same parties.
ACL annual conference 2018 survey results
Solicitors continue to rack up costs in excess of court-approved budgets, but there are signs of improvement, according to the survey of my fellow costs lawyers.
Bad behaviour not good grounds to stay costs order: Raja v Van Hoogstraten and others
The High Court’s decision in Raja v Hoogstraten and others, and in particular the claimant’s application to set aside a previous costs order made in favour of the defendants pursuant to CPR 40.8A, highlights the circumstances and grounds required to set aside an order under CPR 40.8A, yet fails to provide real clarity for the profession.
When to address proportionality
Proportionality may not be the only issue to debate in the costs world right now, but it’s probably the biggest one.
Proportionality: the new political correctness
Proportionality is something that is considered from the pre-action stage, right through to assessment of costs. It has become a term that is familiar to some and feared by many. On 1 April 2013, a new test of proportionality came in to force by virtue of CPR 44.3(2)(a), whereby costs that are disproportionate in amount … Continue reading Proportionality: the new political correctness
Standing up for costs lawyers: Allen v Brethertons LLP
It is now 11 years since the Legal Services Act 2007 (LSA) was passed and eight since the regulatory regime it created fully came into being. And still, unfortunately, there are those elsewhere in the legal profession who do not recognise the difference between costs lawyers and costs draftsmen.
Staying a consent order pending professional negligence proceedings: Riordan and others v Moon Beever Solicitors
Earlier this year, the High Court ruled that a Senior Courts Costs Office (SCCO) master was entitled to stay a consent order relating to detailed assessment because the clients were planning professional negligence proceedings against the solicitors.
Were lawyers ready for the electronic bill of costs?
We are five months into the compulsory electronic bill of costs and so far all is quiet. Obviously it will take time before cases affected by the change hit the courts, but research undertaken by the Association of Costs Lawyers has shown that many solicitors and judges were not ready for the new bill when … Continue reading Were lawyers ready for the electronic bill of costs?
Fixed costs and accepting a Part 36 offer: Hislop v Perde
Fixed costs (and how to avoid them) have been a hot topic in recent months. Earlier this year, in Bratek v Clark-Drain Ltd, the High Court found that it was not possible to contract out of the fixed costs regime attaching to the Road Traffic Accident (RTA) and Employers’ Liability/Product Liability (EL/PL) protocols by providing … Continue reading Fixed costs and accepting a Part 36 offer: Hislop v Perde
Fixed costs versus consent orders: Bratek v Clark-Drain Ltd
Since their introduction in 2013, the pre-action protocols for low-value personal injury claims have been fertile ground for costs jurisprudence, particularly cases involving receiving parties’ attempts to circumvent the fixed costs regime in CPR 45.
Reduction in hourly rates for incurred costs: Jallow v Ministry of Defence
The question of whether a reduction in hourly rates for incurred costs is a good reason to do the same to budgeted costs is a big one at the moment, absent higher court authority. Recently, Master Rowley in the Senior Courts Costs Office (SCCO) had his say, and joined what seems to be the majority … Continue reading Reduction in hourly rates for incurred costs: Jallow v Ministry of Defence
Switching from legal aid to CFA: Surrey v Barnet and Chase Farm Hospitals NHS Trust
The issue of funding is often one which causes satellite litigation. Indeed, it may have been one of the driving factors behind the civil justice reforms. When the ideas of Jackson LJ were enshrined into legislation in the form of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), it was envisaged that … Continue reading Switching from legal aid to CFA: Surrey v Barnet and Chase Farm Hospitals NHS Trust
E-day arrives
The new form electronic bill, coming into force tomorrow (6 April 2018), is “bound to save time and costs” and soon “people will be amazed that we had put up with the old paper-based bill for so long”, Jackson LJ predicted as he reflected on his reforms ahead of his retirement from the bench on … Continue reading E-day arrives
Incurred costs: Tucker v Griffiths and Hampshire Hospitals NHS Foundation Trust
In May 2017, Master Rowley handed down judgment in Tucker v Griffiths and Hampshire Hospitals NHS Foundation Trust, dealing with various issues arising as preliminary points in a detailed assessment. The case centred on an alleged mis-certification of the claimant’s budget and, flowing from that, also dealt with hourly rates and good reason to depart … Continue reading Incurred costs: Tucker v Griffiths and Hampshire Hospitals NHS Foundation Trust
This judgment will rock you: May v Wavell Group Ltd
Though the article and the decision in May and another v Wavell Group Ltd and another contains nods to Queen (the case involves guitarist Brian May), ultimately it relates to Jackson LJ’s vision of proportionality and the differing interpretations that have followed.
Our survey says: ACL’s findings on costs budgeting
Costs budgeting, as we know it today, has been around for less than four years. It was only last June in Harrison v University Hospitals Coventry & Warwickshire NHS Trust that the Court of Appeal provided much needed clarification on the approach to be adopted by costs judges on detailed assessment on departing from approved … Continue reading Our survey says: ACL’s findings on costs budgeting
Harrison v Eversheds: how much should the client pay?
Am I being overcharged? That is the question that many business and private clients are now asking. There is an increasing demand for advice from costs lawyers, solicitors and barristers specialising in costs law, with the aim, in this time of austerity, to challenge solicitors’ claims for costs and hopefully secure a saving. All solicitors … Continue reading Harrison v Eversheds: how much should the client pay?
Budgeting: a good reason to depart?
In the past, perhaps the mention of costs budgeting itself was good reason for many a law practitioner to depart hastily from a conversation. However, this complex issue has been further complicated by the inevitable fall-out of the decision in Harrison v University Hospitals Coventry & Warwickshire NHS Trust, where the Court of Appeal determined … Continue reading Budgeting: a good reason to depart?
Harrison and the risks of the inability to stick to costs budgets: ACL survey
The Court of Appeal’s recent ruling in Harrison v University Hospitals Coventry & Warwickshire NHS Trust was not so much a gentle nudge to solicitors on the importance of costs budgeting, but a sharp elbow in the ribs.
Set-off and qualified one-way costs shifting (QOCS): what comes first?
You are faced with a claim for personal injuries and you make a Part 36 offer with a view to affording costs protection. It transpires that your Part 36 offer is successful and you look to recover your costs. By way of illustration:
An exchange (rate) of views: compensating for currency differentials
Back in 2009, my client, a multinational law firm, obtained an award for costs in a piece of litigation for the European Central Bank. Needless to say, its client was invoiced in euros, by reference to euro hourly rates, yet the assessment of costs proceeded by reference to figures converted into sterling.
Sarpd Oil International v Addax Energy SA and another: managing the costs of a changing landscape
By the end of 2015, the majority of litigation practitioners had become accustomed to the intricacies of costs management. Whilst the occasional surprise continued to occur before some district judges, after almost three years the majority of kinks in the system had been resolved. However, the status quo was upset in January 2016 by the … Continue reading Sarpd Oil International v Addax Energy SA and another: managing the costs of a changing landscape
More workable bill of costs launched by ACL
A new format for the good old bill of costs is sneaking up on the profession with increasing speed.
Better the devil you know? Statistics from ACL members’ survey: attitudes to costs management
We are more than three years into costs management and it is fair to say that lawyers are still a long way from getting fully to grips with the practice.
Signia Wealth v Marlborough Trust Company: a growing enthusiasm for costs budgeting?
The widely reported chief Chancery master’s decision in Signia Wealth Ltd v Marlborough Trust Company Ltd & another indicates a marked departure in approach by the court from the early days of the Jackson reforms and costs budgeting.
Mediate or not, that is the question
Any advice given to clients should be tempered, as far as possible, with how that advice may impact on them in the future, as well as with how a judge might view that advice in determining the reasonableness of a decision taken on its basis. To my knowledge, nobody has a crystal ball to see into the future, … Continue reading Mediate or not, that is the question
ACL members’ survey: reactions to costs management and the new bill of costs
Every year the Association of Costs Lawyers undertakes a survey of members. This year we received 126 responses, which amounts to more than a fifth of our membership.
When is it reasonable for a claimant to change from legal aid to a conditional fee agreement (CFA)?
This is a key question that has been asked by many civil litigation practitioners, particularly following implementation of the Legal Aid Sentencing and Punishment of Offenders Act 2012 (LASPO).
Costs management changes in the 83rd CPR update: increased opportunity for agreement
Since costs management was introduced in April 2013, one of its key difficulties has been the strain that it has placed on the court’s resources. In part, this is due to often hotly contested arguments over the party’s respective budgets. The pressure became so great in the RCJ that cost budgeting in clinical negligence matters … Continue reading Costs management changes in the 83rd CPR update: increased opportunity for agreement
