No CPR rule has kept the lawyers and the rule drafters as busy as Part 36. 25 years ago, only a defendant could make an offer to settle which had deemed costs consequences if it was accepted, or was not beaten by the plaintiff (as the claimant then was) if the matter went to trial. … Continue reading Part 36: the melancholy side of the coin
Following the introduction of costs budgeting under section II of Part 3 of the Civil Procedure Rules on 1 April 2013, much has been said, written and done about how it has affected Part 7 multi-track litigation in claims worth at least £50,000 where it is compulsory. To some, costs budgeting has added an additional … Continue reading Group litigation budgets: what price advertising and a “round robin” letter?
Made an offer to your opponent under CPR 36.5? What happens next? If the offer is accepted under CPR 36.11 within the “relevant period” as defined in CPR 36.3(g) (usually within 21 days unless fewer than that number are left before the trial is due to start), the case is compromised in the terms of … Continue reading Closing the interest trap: CPR 36.5(5)
Cometh the trial. Cometh the judgment. Cometh the costs. What next? Before the implementation of the Civil Procedure Rules (CPR) in 1998, the default rule was that the winners were awarded their costs to be paid by the losers, even though the victory might have been by just a short head. Win your claim by … Continue reading Costs budgeting and indemnity basis costs: which prevails when the budget is varied under CPR 3.15A?
The second part of this blog post looks at Lavender J’s reasons, in Belsner v Cam Legal Services Ltd, for allowing Ms Belsner’s appeal against District Judge Bellamy’s decision in which he had found that “informed consent” to the deduction of a success fee was not required where the solicitor relied on CPR 46.9(2), and … Continue reading Taking on a new client? How to make sure there is “informed consent” (Part 2)
That a firm of solicitors can go unpaid or earn less than it has billed for its work undertaken on behalf of a successful client, is nothing new. Since the passing of the Act for the Better Regulation of Attornies and Solicitors of 1729, which in its evolution, is now embodied in the Solicitors Act … Continue reading Taking on a new client? How to make sure there is “informed consent” (Part 1)
There is an art in writing judgments. Some judges have it. Others do not. In the latter category, judges have not necessarily been assisted by today’s simple electronic access to the law reports, which permits lengthy chunks of marginally relevant earlier authorities to be incorporated easily into them. The consequence is that it is now … Continue reading Part 36 revisited: The judicial oracle gives his decision
Bust the costs budget in an action in which the court has made a costs management order (CMO) under Civil Procedure Rule (CPR) 3.15? To be as certain as you can be that any excess above the agreed or last approved costs budget will be recovered at a subsequent detailed assessment under CPR 47.14, what … Continue reading Busting the budget: CPR 3.15A riding to the rescue?
Prior to the implementation of the Civil Procedure Rules (CPR) in 1999, what is now Part 36 did not exist. A defendant could make a payment into court to put a claimant on risk as to future costs. “Reject my offer and fail to beat it at trial, and you will be ordered to pay … Continue reading CPR 36.17(4): what is sauce for the claimant goose is not sauce for the defendant gander but CPR 36.17(5) can dilute its strength
For those practitioners who remember Order 62 of the Rules of the Supreme Court, in force until 26 April 1999 when they were replaced by the Civil Procedure Rules, it was a relatively easy life for the court when it was considering what costs order to make at the end of a trial. Expressed in … Continue reading Avoiding the perils of issue-based costs orders
In the September 2019 blog, we featured alternative dispute resolution (ADR), placing emphasis on the advance of guidance at High Court level and above, that parties to litigation, who ignore invitations to engage in ADR, do so at their peril as to the costs of the action, even if they win (see the blog and … Continue reading Alternative dispute resolution versus having your day in court: another round to ADR (Part 2)
If there was a date on which the realities of how COVID-19 was about turn the life of the nation upside down, Friday 13 March 2020 has to be the best candidate. Earlier that week, Leicester City had played Aston Villa on the Monday (Villa lost 4-0), the following day the Cheltenham Festival had begun … Continue reading COVID-19 and the civil courts: must the show go on?
Won your case with costs? Good news, but what happens if you slipped up on the way and your opponent has succeeded in obtaining a costs order against you? That might have happened had you made a request to the court for permission to rely on an additional expert’s report, but your application to do … Continue reading Set-off and enforcement in QOCS: different beasts in the costs jungle?
When Kain Knight was in its infancy 40-something years ago, there were no such things as points of dispute. The protagonists would arrive for a taxation, as detailed assessment was then known, largely in ignorance of the arguments which would be raised. With nothing electronic in those days, the receiving party’s files would be lodged … Continue reading Points of dispute: between the devil and the deep blue sea
All civil litigation practitioners ought to know the difference between standard and indemnity basis costs. Whilst CPR 44.3(1) applies to both and provides that the court will not allow costs which have been unreasonably incurred or are unreasonable in amount, an important distinction is provided for in CPR 44.3(2)(a) and (b). Standard costs must be … Continue reading Indemnity basis costs: eating judicial humble pie
In the 14 June 2019 blog entitled Part 36 offers in Part 47 Assessments: all clear now or still confused, the case of Horne v Prescot was considered in the context of the validity of Part 36 offers in detailed assessment proceedings. In Horne, Nicol J had decided that an offer to accept the sum … Continue reading Part 36 offers in Part 47 assessments: all clear now so no reason still to be confused
Fixed costs under CPR 45. The upside: the winning lawyer recovers costs in a fixed amount depending upon the stage at which the case has been completed, whether or not work to that value has been done. The downside: the lawyer does not recover any extra costs for doing work which the fixed costs do … Continue reading Fixed costs: can you contract out of the regime?
Answer: when a claimant, who is a party to “no win no fee” conditional fee agreement (CFA) with his solicitor, dies before a “win” in litigation is achieved. In that eventuality, the “death” clause, which is a feature of most CFAs, takes effect: the CFA is terminated immediately and the solicitor is entitled to claim … Continue reading When is a “no win, no fee” agreement not a “no win, no fee” agreement?
Chairing a conference has lots of challenges, a number of which can be lost on delegates who attend only for the hours set out in the programme. The timetable tends to follow a set formula: coffee and light breakfast on arrival, an introduction by whoever is chairing the conference to cover housekeeping (no fire drill … Continue reading Costs Law Reports Conference, 25 September 2019: conference cool down
“See you in court” was an oft-used expression prior to the implementation of the Woolf Reforms which involved the replacement of the Rules of the Supreme Court by the Civil Procedure Rules (CPR) with effect from 26 April 1999. With the introduction of the CPR, the intention was that there would be no more “firing … Continue reading Alternative Dispute Resolution versus having your day in court: another round to ADR
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
The word “inquest” carries with its overtones of sadness. Before you can have an inquest, there must be a death, so the work of the coroner in investigating what has caused it will inevitably bring tears to the eyes of relatives and to those who have survived or witnessed terrible events in which others have … Continue reading The chicken and egg of inquest costs: recoverable for attending, yes; legal aid to attend, no
Paying defendants constantly carp at the cost of litigation and at how much they are expected to pay when they lose. After all, if that were not the case and they paid up without a murmur, there would be no such thing as detailed assessment. Whilst the focus of their disquiet is usually directed at … Continue reading CPR 36.17(4): what is sauce for the claimant goose is not sauce for the defendant gander
A party who wins with costs is in a strong position when it comes to provisional or detailed assessment under CPR 47.14-15. First, the costs of the assessment are theirs as of right without having to do anything: see CPR 47.20(1). Second, such a party can profit from the benefits available under CPR 36.17(4). Make … Continue reading Part 36 offers in Part 47 assessments: all clear now or still confused?
To costs “anoraks”, the judgment of the Court of Appeal in Herbert v HH Law is likely to be one of the most important decisions of 2019, memorable for guidance about what constitutes “informed consent” by a client to the terms of their solicitor’s retainer. That is, however, to overshadow the tail-end-Charlie part of the … Continue reading Ms Herbert and her insurance premium: disbursement or no disbursement?
Question. What is the purpose of costs management including costs budgeting under CPR 3.12-3.13?
“Pay as you go” was a Woolf recommendation when the Civil Procedure Rules were implemented on 1 April 1999, following the recommendations made by the former Lord Chief Justice in his eponymous report in 1998. By that was meant that costs would no longer be payable only at the conclusion of the litigation. Henceforth, whenever … Continue reading Practice Direction 51X: another two-year costs pilot scheme
In claims by disappointed passengers against airline carrier Ryanair, consider these scenarios.
In this blog, I focus on the costs aspects of the Practice Direction amendments contained in the 104th CPR update. Firstly, there is a change to Practice Direction 3E with a replacement Annex C Precedent R Budget Discussion Report. Not much to comment on in that regard; case law has previously dealt with issues as … Continue reading Electronic time-recording and summary assessment: 104th CPR update two-year pilot scheme
Everything sorted: that is what appeared to be the case with solicitor’s hourly expense rates and costs budgets after Jacobs J gave his judgment in Yirenki v Ministry of Defence:
It is almost six years since section 44 of the Legal Aid (Sentencing and Punishment of Offenders) Act 2012 (LASPO) was enacted on 1 April 2013, under which success fees in conditional fee agreements (CFAs) and after-the-event (ATE) insurance premiums ceased to be recoverable from opponents in most types of litigation. Exceptions were carved out … Continue reading “Old style” CFAs: the last hurrah for success fees?
As we move into the tenth year since Sir Rupert Jackson signed off his Review of Civil Litigation Costs: Final Report, his flagship recommendation about controlling costs through costs budgeting bears repeating (Final Report: Executive Summary 6.10):
Running an action in the multi-track worth less than £10 million but £50,000 or more and you are not a litigant in person? Your case will be subject to costs management under Part II of CPR 3 unless the claimant is a minor, fixed costs apply or “the court otherwise orders”. That means that not … Continue reading Costs budgeting: both sides must play by the rules or else
Claim won with costs? It is not an unreasonable expectation in that case is it not, that there will be a guaranteed recovery from your opponent of the budgeted costs (those last approved or agreed insofar as you are within budget), plus a bit for the incurred costs? Consideration of any Part 36 offer made … Continue reading The proportionality roulette wheel spins again
Acting for and representing yourself: to what extent will your time and trouble be recompensed by your opponent if you win?
What happens when an injured claimant is uncertain about the identity of the perpetrator of the wrong and is confused about who to sue? One answer is to adopt a scattergun approach: sue everyone in sight and hope that within the cohort of defendants thus joined, the actual tortfeasor(s) will be ascertained and found to … Continue reading After Sanderson and Bullock orders, Jabang and Woodland orders
The indemnity principle is the kernel of costs recovery. A party ordered to pay costs is required to reimburse no more than the sum that the receiving party is liable to pay their own solicitors. If the contract of retainer between the receiving party and their own solicitor is unenforceable for any reason, then by … Continue reading Conditional fee agreements and the sin of addition: no longer a sin
In May’s blog, we featured the solicitor’s equitable lien following the Supreme Court’s judgment, given on 18 April 2018, in Gavin Edmondson Solicitors Ltd v Haven Insurance Co Ltd.
“Cutting out the middle man” is a well-known fact of life (making the expression gender neutral is more difficult). Whether it is selling your house privately to cut out the estate agent or disposing of your car through a private “ad” rather than via the local garage, opportunities abound to save costs by dealing direct … Continue reading Solicitor’s costs: cutting out the middle man
Mixed news. Your maiden aunt, Aunt Agatha, has died aged 92, but she has left the bulk of her wealth to you and the solicitors instructed by her executor to administer the estate have now completed their work.
Almost there! Getting on for a decade after Sir Rupert Jackson started work on his “Review of Civil Litigation Costs: Final Report 2009”, the electronic bill, which he recommended should replace the traditional paper bill of costs, is about to become mandatory in the courts of England and Wales.
But what is the answer? In theory it is straightforward. When the court is fixing costs budgets at a case or costs management conference (CCMC), the 82nd update to the Practice Direction at PD 3E.7.10 tells us:
Since the introduction of costs budgeting in the amendment to the Civil Procedure Rules (CPR) in April 2013, there has been something of a quandary in relation to how best and when to revise one’s costs budget upon a significant development after the advent of a costs management order.
The scenario: the receiving party serves a bill for £75,000 and commences proceedings for detailed assessment under CPR 47. 6. In view of the sum involved, the bill is referred for provisional assessment under CPR 47.15 and Practice Direction (PD) 47.14.1. The bill is assessed by the judge at £72,000. Sealed offers lodged under PD … Continue reading Part 36 prizes in provisional assessment: does CPR 47.15(5) prevail over Part 36.17(4)?
Proportionality is a cornerstone of the Jackson reforms and was implemented on 1 April 2013 through changes to the Civil Procedure Rules (CPR) effective from that date. The problem is that the legal profession remains in ignorance for the most part about how proportionality is to be applied in practice. One thing is clear: costs … Continue reading After the event insurance premiums and proportionality: uncomfortable bed fellows, at least for the moment
A simple question but one to which, until now, there has not necessarily been a simple answer. The starting point itself is simple. At the end of a hearing or a trial, the court can make a costs order directing one party to pay the costs of the other party. If the proceedings have been … Continue reading When can costs be assessed? Remember to ask the question!
The trial is over. The case is won. The opposition is to pay the costs. The champagne corks are popping. The successful solicitor’s client is happy. But for how long? The battle may be over, but the war may just be starting.
It is well known that one of our most famous judges, Lord Denning, stood up firmly against anything that might sully the “purity of justice”. Thus the concept of a lawyer sharing the spoils of victory with their client was complete anathema to him, since such an arrangement had the potential to put the professional … Continue reading Conditional fee agreements: fallout with the client and count the cost: a warning from history
Readers of a certain age, such as the author, will remember football pool orders. A losing plaintiff (as a claimant then was), whose personal injury claim had been run on legal aid, was protected against having to pay out any costs by the magic words: “order not to be enforced without the leave of the … Continue reading QOCS and football pools orders: does Catalano answer all the questions?
Former Tory Chief Whip Andrew Mitchell MP’s foray into the hard fought privacy litigation known as “Plebgate” produced the most important costs case reported in 2013 (see Mitchell v News Group Newspapers). His libel action had turned on what he had (or had not) said to a police officer at the entrance to Downing Street … Continue reading Mitchell madness on the march again
The legal maxim “hard cases make bad law” is attributed to US Supreme Court Justice Oliver Wendall Holmes and has proved to be every bit as durable as its author (Holmes fought for the North in the American Civil War and retired from the bench 70 years later in 1932 aged 90!). In Hyde v … Continue reading Legal aid and CFAs: uncomfortable bedfellows? A view about Hyde v Milton Keynes Hospital NHS Trust
The case of Jarndyce v Jarndyce is notorious in Dickens’ Bleak House for appearing to go on forever, and Plevin v Paragon Finance has a lot of Bleak House about it. This was originally a case about Payment Protection Insurance (PPI). Now it is one about costs.
The first High Court decision following Merrix v Heart of England NHS Foundation Trust has now been handed down, enabling this follow up to be written to the blog of 10 March 2017 on this subject: see Car Giant v the Mayor and Burgesses of the London Borough of Hammersmith (judgment on 2 March 2017).
Much has been written about Merrix v Heart of England NHS Foundation Trust and the consequences it may have for the detailed assessment of costs under CPR 47.
Some of the more worrying changes that lie ahead for litigators in 2017 are Jackson LJ’s review of the extension of fixed recoverable costs and the potential increase in the small claims limit. However, the new spread sheet based bill of costs is particularly noteworthy.