Author: Andrew McAulay

Guideline Hourly Rates – Final Report

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The Civil Justice Council working group has now published their final report on guideline hourly rates following the consultation that took place between January and March 2021.

The report responds to the concerns raised during the consultation process, however, the working group’s recommendations remain as per the interim report and will now be considered by the Master of the Rolls.

The recommended revised rates are as follows:

The full report can be found here.

You can find out more about our services here or you can contact the Costs and Litigation Funding team at CivilCosts@clarionsolicitors.com.

Legal costs: Procedural Errors and Delay

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Andrew McAulay and Dominic Regan consider some recent cases and issues which arise from procedural defects and delay. Cases discussed in this video are:

You can find out more about our services here or you can contact the Costs and Litigation Funding team at CivilCosts@clarionsolicitors.com.

CPR Committee seeks feedback on the Summary Assessment of Costs Pilot (PD51X) 

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The summary assessment of costs pilot began in April 2019 and introduced the N260A for interim applications and N260B for trial.

The pilot, which was originally to run to April 2021, has been extended for a further year due to low take up. The possible reasons for the low uptake were discussed at the CPRC open meeting in May 2021 and you can read our full blog on that meeting here.

It was decided that feedback would be sought and the resulting online survey is now live at https://www.smartsurvey.co.uk/s/BPT2Q7/

The survey seeks views on the level of detail required in N206A and N260B and reasons why practitioners may have chosen not to use the new forms where PD 51X applies.

The survey ends on 30th July 2021

You can find out more about our services here or you can contact the Costs and Litigation Funding team at CivilCosts@clarionsolicitors.com.

SGI Legal LLP v Karatysz – Informed consent irrelevant to CPR46.9(3)(c)(ii)

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The decision of Mr Justice Lavender in SGI Legal LLP v Karatysz [2021] EWHC 1608 (QB) (11 June 2021) has been handed down today.

The matter concerned a Solicitors Act assessment in respect of the Defendant Solicitors’ deduction from the Claimant’s damages following a successful RTA claim. At the original hearing the District Judge found that informed consent was relevant for the purpose of CPR 46.9(3)(c)(ii) and that the solicitors’ costs should be limited to the costs recovered from the insurers.

The Defendant Solicitors were successful on appeal, Mr Justice Lavender held that “the issue under CPR 46.9(3)(c)(ii) is whether or not the solicitor told his client what is there set out. That issue concerns what the solicitor said, not whether the client agreed with or approved what the solicitor told him.”

See the full judgment here and listen to Joanne Chase and Dominic Regan discuss the judgment in more detail in our latest video.

You can find out more about our services here or you can contact the Costs and Litigation Funding team at CivilCosts@clarionsolicitors.com.

Open meeting of the Civil Procedure Rules Committee 2021 – Costs update

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The CPRC annual open meeting took place today via Teams following last year’s successful online meeting. One of the benefits of the past year’s enforced remote working has been the ease of access to forums such as this. Hopefully as we come out of restrictions, we will be able to retain some of the positive changes alongside enjoying some face to face time.

The lessons of the past 14 months were covered by the Master of the Rolls, The Rt. Hon. Sir Geoffrey Vos, who discussed the need to be ambitious in delivering access to justice online and the real opportunities to improve. A lot has been learned in respect of video hearings and PDF bundles which has been great for the system. There will, of course, be instances where in person hearings are preferable but it is likely that shorter hearings will be able to continue to be dealt with remotely. The senior Judiciary will be taking the time to look at the matter carefully.

The following costs matters were discussed and the full minutes will likely be published in June:

Vulnerable parties – Last year changes were made to the overriding objective together with the introduction of PD1A in respect of vulnerable parties. Since then, as anticipated, the Domestic Abuse Act has received royal assent. Sections 64 and 66 require amendments to the CPR to make provision for special measures where a party is a victim or likely victim of domestic abuse. Sections 64 and 66 come into force in April 2022 and the committee has therefore embarked that work. The paper and drafts are due to come before the committee at July meeting.

Aldred -v- Cham [2019] EWCA Civ 1780  – The costs subcommittee has considered the issues rising from Aldred in respect of CPR 45.29I which covers recoverable disbursements in matters which no longer continue under the specified pre-action protocols. The rule includes a wrap up provision allowing for “any other disbursement reasonably incurred due to a particular feature of the dispute”. This provision was not wide enough according to the Court of Appeal and the Supreme Court panel said that the CPRC should consider the issue even though permission to appeal was refused. The key areas of concern were the fee for Counsel’s opinion where the Claimant is a minor (as required by CPR 21) and interpreter costs. In both cases the costs arose due to a characteristic of the Claimant rather than the dispute. The subcommittee’s proposed solution was to add those two specific instances to the list and to expand the wrap up provision to include any other disbursement which is required by the rules to be incurred. This was agreed and further discussion will take place off-line regarding other issues raised such as the costs of telephone conference fees.

Summary Assessment of Costs Pilot (PD51X) – The pilot was introduced in April 2019 to run to April 2021, however, following the pilot it was noted that uptake had been limited. It was therefore decided that the pilot would be extended for another year. It was generally agreed that whether parties are to file the old or new forms, they should be self calculating so that the judge can make changes. In respect of the N260A interim application pilot form, a concern is that a large amount of detail is required for simple hearings lasting maybe half an hour. In respect of the N260B for trial, it was noted that these may be fast track cases which are not budgeted and therefore practitioners are possibly not recording time in a compatible way. Possible fixed costs changes would also have an impact. There will be further informal consultation and a smart survey via the website is being considered to give feedback.

Costs consequences of late acceptance of Part 36 offers – The Lacuna committee has considered the issue arising from various recent cases including Pallett v MGN Ltd [2021] EWHC 76 (Ch) in respect of the tactical late acceptance of Part 36 offers by Defendants in order to avoid the automatic costs entitlement. The issue will be taken up by the costs subcommittee.

Form N170 & Costs – A question was raised regarding Form N170 (Listing questionnaire (Pre-trial checklist)) querying the requirement in section F that the parties must attach ‘an estimate of costs’  as this reference relates to the pre-April 2013 CPR costs regime and the old Practice Direction. The Forms subcommittee will look to amend this.  

You can find out more about our services here or you can contact the Costs and Litigation Funding team at CivilCosts@clarionsolicitors.com.

Small Claims Track Limit – Employers and Public Liability Claims

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It has been announced that the small claims limit for non-RTA cases will increase to £1,500 instead of £2,000. The change will take effect from April 2022.

The new £5,000 limit for RTA claims takes effect from 31 May 2021.

Lord Wolfson said: ‘Pausing its implementation for 12 months will enable greater focus to be placed on the commencement of the whiplash reforms and the launch of the new Official Injury Claim service for claimants on 31 May 2021.’

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Proposals to increase court fees and the income threshold for Help with Fees

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Court fees for Civil, Family, Court of Protection and the Magistrates’ Court are set to increase in the autumn under new government proposals. The plans seek to apply an inflation based increase dating from August 2016 or the year the fee was last amended (capped at August 2016), the aim being to reduce the taxpayer contribution required to fund court and tribunal services by £11 – £17 million a year.  

In addition, inflationary uplifts will be applied to the income thresholds for fee remission, again from August 2016.

The MOJ has opened a consultation on the proposals which is open until 17th May 2021.

The detailed proposals and the content of the questionnaire can be found here and you can respond online here.

Pre-Judgment Interest

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s17 of the Judgments Act 1838 and CPR 44.2 (6) (g) allows the High Court to award pre-judgment interest on costs.

In the writer’s experience, the award of pre-judgement interest is only common in the Commercial Court. It is usually awarded on long-running cases where costs have been paid on a private fee paying basis and there has been a large outlay on costs. The interest will usually be awarded from the date that the successful party paid the law firms’ invoices.  There must be a good reason to award pre-judgment interest, but there is no requirement to establish exceptional circumstances. The comments of Lord Justice Waller in Bim Kemi AB v Blackburn Chemicals Ltd [2003] EWCA Civ 889 summarise the position well:

‘…….in principle there seems no reason why the Court should not do so [i.e. make an award of pre-judgment interest] where a party had had to put up money paying its solicitors and been out of the use of that money in the meanwhile’.

In the recent of case Puharic v Silverband [2021], the Court awarded pre-judgment interest at a rate of 2% over base rate. In the writer’s experience, awards of between 1 and 2% are common.

Pre-judgment interest is a tool that is not routinely considered by litigators. It is important that litigators have pre-judgment interest at the forefront of their minds when dealing with the issue of legal costs following a final hearing. The remedy helps to put the successful party back in the position it would have been in had the litigation not been necessary. If the successful party had not had to pay their lawyers, they would have utilised the money elsewhere or would not have had to have incurred the costs of borrowing it.

Have you had any recent experiences of pre-Judgment interest? If yes, then please feel free to share them through this blog.

This blog was written by Andrew McAulay. Andrew is a Partner at Clarion and the Head of the Costs and Litigation Funding team. He can be contacted on 07764501252 or at andrew.mcaulay@clarionsolicitors.com

Whiplash reforms update

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Whiplash reform details have now been published and are due to come into force on 31st May.

The reforms consist of a new portal and incremental tariffs for soft tissue injuries arising from RTAs. The tariffs range from £240 to £4,215 depending on the duration of the injury together with a further fixed sum where there are accompanying minor psychological injuries. Uplifts of up to 20% can apply in exceptional circumstances.

RTA claims for accidents on or after 31st May 2021 where the claim for pain, suffering and loss of amenity is less than £5,000 will fall within the new small claims track portal and costs will not be recoverable. Exceptions include claims for children or protected parties. The overall small claims limit remains at £10,000.

Helen Spalding is an Associate in the Costs and Litigation Funding Department at Clarion. You can contact her at helen.spalding@clarionsolicitors.com or on 0113 288 5639.