Author: Ellena Hunter

Further Fixed Recoverable Costs to be introduced; Clinical Negligence cases with a value at settlement or judgment of up to £25,000.00 to be captured

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The Government has released its response to the consultation on fixed recoverable costs in lower damages clinical negligence claims (‘LDFRC’), which can be found here.

Listen to the podcast below in which Daniel Murray and Ellena Hunter provide a whistle-stop tour of the cases that will be captured by the new scheme, the process to be followed under the protocols and the fixed recoverable costs of each stage.

Ellena Hunter and Daniel Murray are Associates in the Civil and Commercial Costs Team at Clarion Solicitors. You can contact the team at civilandcommercialcosts@clarionsolicitors.com

Senior Court Costs Office Guide 2023: What has changed?

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The Senior Court Costs Office Guide 2023 (the ‘Guide’) has now been released and can be found here. Although this guide is meant for proceedings in the Senior Court Costs Office (‘SCCO’), this is a very useful starting point to understanding detailed assessment proceedings generally.

As with the SCCO Guide 2021, the Guide is split into 4 parts:

  • Part A General Matters = covering matters such as entitlement to costs, costs management orders, costs capping orders and the electronic bill;
  • Part B Detailed Assessment Proceedings = covering the processes of, and time frames for, commencing detailed assessment, serving points of dispute, serving replies to the points of dispute, and requesting an assessment;
  • Part C Applications = covering the processes of obtaining and setting aside a default costs certificate, obtaining a payment on account and applications in detailed assessment proceedings; and
  • Part D Specific Proceedings = covering solicitor and client assessments, costs only proceedings, appeals and litigants in person.

The changes in the Guide are minimal but include:

  •  Amendment to the qualified one-way costs shifting (‘QOCS’) section in light of the change to CPR 44.14 in April of this year;
  • the inclusion of Precedent R and T in the schedule of precedents; and
  • the inclusion of standard orders for assessments under CPR 46.4(2) in the schedule of precedents.

See Ella Wilkinson’s blog here regarding the changes to the Guide in relation to COP cases.

Ellena Hunter is an Associate in the Costs and Litigation Funding Department at Clarion Solicitors. You can contact the team at civilandcommercialcosts@clarionsolicitors.com

Leading Counsel instructed to attend Mesothelioma trial deemed not reasonable or proportionate

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The matter of Coram -v- DR Dunthorn & Son Ltd [2023] EWHC 731 (SCCO) concerned an oral review of a provisional assessment. The case concerned a claim brought by the Deceased’s son who died as a result of her secondary asbestos exposure, caused by washing her husband’s work clothes. The Defendant defended the claim and Master Davison directed, at the CMC, that the trial should be heard by a category C Judge, with a time estimate of three days. The matter was subsequently set down for a trial to take place in a 5-day window commencing on 2 March 2022.

On 28 January 2022, the Claimant’s solicitor instructed Mr Harry Steinberg KC and Ms Gemma Scott, junior Counsel who had been instructed during the proceedings, to advise in conference and attend the trial. The conference took place and the matter subsequently settled for the sum of £75,000.00 gross with the Defendant to pay the Claimant’s costs. As such, the trial date was vacated and a consent order was filed recording the settlement.

The Claimant served their bill of costs containing abated brief fees for both Leading and Junior Counsel, this fee including the conference that had taken place. Leading Counsel’s brief fee had been abated from £50,000.00 to £25,000.00 and Junior Counsel’s from £25,000.00 to £12,500.00.

The parties agreed all items in the Claimant’s bill of costs save for Counsels’ fees. The Defendant submitted in the Points of Dispute that:

“Gemma Scott would have been more than qualified to conduct this three day trial on her own. The instruction of both Gemma Scott and Leading Counsel is unreasonable and Junior Counsel fees alone are offered….

On the basis of no fee for a QC, the Defendant will agree the fee for the Junior Counsel – item 626 – at £10,000 plus VAT and success fee.”

The Claimant served Replies to the Points of Dispute asserting that it would have been the first occasion on which obiter comments made in Bannister -v- Freemans Plc [2020] EWHC 1256 (QB) (a secondary exposure case) were to be tested at trial. It was also asserted that this case was much more difficult than Bannister and that there was a high chance that, regardless as to which party succeeded at trial, the case would have been appealed to the Court of Appeal and possibly to the Supreme Court. It was said that the Defendant had chosen to advance novel arguments and that it had obtained detailed medical and engineering evidence to support them when it could have fought the case in a more straightforward way. The case was therefore novel and had some public importance.

Due to the amount in dispute being below the £75,000.00 threshold, the matter proceeded to provisional assessment. Deputy Costs Judge Joseph disallowed Leading Counsel’s fees and allowed only £10,000.00 for Junior Counsel. However, it was noted that the Judge did not disallow the Leading Counsel’s fees due to the matter being within the capabilities of Junior Counsel as was submitted in the points of dispute, but upon considering whether the instruction of Leading Counsel was proportionate and reasonable, when assessing on the standard basis, any doubt should be resolved in favour of the paying party.

The Claimant challenged the provisional assessment by means of an oral review. However, Deputy Costs Judge Joseph stated that he had not been persuaded that it was reasonable and proportionate for Leading Counsel to have been instructed.

Ellena Hunter is an Associate in the Costs and Litigation Funding Department at Clarion Solicitors. You can contact the team at civilandcommercialcosts@clarionsolicitors.com

10 years on from LASPO: Where we were, where we are now and where we are going.

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As of last month, it has been 10 years since the implementation of LASPO; which implemented several of Lord Justice Jackson’s recommendations from his 2010 final report.

Listen to our podcast below in which Andrew McAulay and Ellena Hunter discuss how the implementation of LASPO and Lord Justice Jackson’s other recommendations have changed the world of costs, whether the same has achieved Lord Justice Jackson’s aim to control costs and promote access to justice and what the future of civil litigation may look like with the expansion of fixed recoverable costs.

Click here to tune into Anna Lockyer and Daniel Murray discussing 10 years of costs budgeting and what the future of costs budgeting may look like.

Click here to book your place on our Fixed Costs Masterclass Seminar on 6 September 2023.

Ellena Hunter is an Associate in the Costs and Litigation Funding Department at Clarion Solicitors. You can contact the team at civilandcommercialcosts@clarionsolicitors.com

Hourly rates: is a detailed assessment more beneficial to a receiving party than summary assessment?

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In Harlow District Council v Powerrapid Limited [2023]EWHC 586 (KB), the Council (‘Appellant’) made a Compulsory Purchase Order (‘CPO’) in respect of land owned in Harlow by Powerrapid (‘Respondent’). The Respondent successfully resisted the CPO and was awarded their costs.

District Judge Leonard determined the categories of costs that fell within the scope of the costs order and made a preliminary assessment as to the applicable hourly rates, including an uplift on the guideline hourly rates of between 8% and 41%. The Appellant appealed District Judge Leonard’s judgments in relation to the scope of the costs order and the hourly rates awarded.

There are two interesting features of this judgement: firstly, the Court’s position on a party appealing a costs Judge’s determination of hourly rates and, secondly, the relationship between the guideline hourly rates and detailed assessment.

Appealing a costs Judge’s determination of hourly rates

In determining the appeal regarding the hourly rates, the Mr Justice Choudhury considered the judgment of Mealing McLeod v Common Professional Examination Board [2002] 2 Costs LR 223and noted that “Permission to appeal should not be granted simply to allow yet another trawl through the bill, in the absence of some sensible and significant complaint”. Mr Justice Choudhury stated that:

“…the role of the Appellate Court in this context is a limited one, that it should be slow to interfere with the exercise of judgment by a specialist costs judge, and that it should only do so where the conclusions of the judge below exceed the generous ambit within which reasonable disagreement is possible”

In response to the Respondent’s submissions that the Judge did not preside over the substantive matter giving rise to the costs application, Mr Justice Choudhury commented:

“In my view, it would be to usurp the role of the costs judge if the appellate court were to consider that it was in an equivalent position to the costs judge and/or had some greater right to interfere with a judgment merely because the judge below (like the appellate court) had not heard the substantive matter.”

The relationship between the Guideline Hourly Rates and detailed assessment

Upon considering the hourly rates awarded by District Judge Leonard and the applicability of the Guideline Hourly Rates (‘GHRs’) on detailed assessment, Mr Justice Choudhury stated that:

“The Master of the Rolls’ emphasis on the Guide being “no more than a guide and a starting point for judges carrying out summary assessment” is important to bear in mind. I note that the Judge in the present case was not conducting a summary assessment, for which the Guide is principally intended… ”

Mr Justice Choudhury further commented that the GHRs are not as central to a detailed assessment as they are to a summary assessment and highlighted the reference in the Guide to the Summary Assessment of Costs 2021 (‘Guide’) that GHRs are intended to provide a starting point in a summary assessment, and that they may also be a helpful starting point on detailed assessment. He added that whether or not the GHRs are a helpful starting point is a matter to be considered by the costs Judge having regard to all the circumstances of the case.

In dismissing the challenge to the hourly rates awarded, Mr Justice Choudhury stated:

“It was open to the Judge to conclude, as he did, that the GHRs were not particularly useful in this case”

Mr Justice Choudhury in dismissing the appeal stated that “there was no error of principle or law on the part of the Judge and no judgment that exceeded the generous ambit afforded to him. Accordingly, there is nothing that would entitle this Court to interfere with his conclusions.”

Is it more beneficial for a Receiving Party to seek detailed assessment of their costs rather than summary assessment?

Mr Justice Choudhury’s judgment on the relationship between the GHRs and the detailed assessment proceedings reiterates the passage in the Guide that GHRs may be a useful starting point for detailed assessment proceedings, but a Judge can utilise their discretion and find that the GHRs are not useful in light of the circumstances of the case.

The contrast of this judgment to that of Samsung Electronics Co Ltd and others v LG Display Co Ltd and another (Costs) [2022] EWCA Civ 466, in which it was held that there must be ‘a clear and compelling justification’ to obtain hourly rates in excess of GHRs at summary assessment, clearly demonstrates that obtaining an uplift on the GHRs at summary assessment is a higher threshold to pass than at detailed assessment. Whilst the wording of the Guide requires that GHRs be a starting point on summary assessment, and leaves it open to the Judge to determine whether they are in fact helpful on detailed assessment, the case law has certainly widened the relationship between the two assessment processes. It would be preferable for a receiving party to have their costs assessed by way of detailed assessment than summary assessment.

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

Optimising Costs Management: Part 3

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You can listen to the blog here

This is the final entry of our three-part series on optimising costs management.

The first blog in this series outlined the 2% budget process provision; how to utilise this to obtain the best outcome possible at a CCMC; and the benefits of monitoring budgets. This can be read or listened to here.

Our second blog detailed potential problems of not utilising the 2% budget process provision. This can be read or listened to here.

The focus of this blog is minimising risk. So what steps can be taken to reduce exposure to risk?

Utilising budget process provision

If you utilise the 2% budget process provision prior to CCMC by investing time in budget discussions then at best you can have your budget agreed in full and at worst, nothing will be agreed but you will know which issues are in contention ahead of the CCMC. Counterarguments can then be prepared. Either way, you are in a much better position than if you fail to engage from the outset. Attending a CCMC with little idea of what the other party will say is not advisable.

The best way to optimise costs management following CCMC is to regularly monitor the costs of a case. This will enable you to take a proactive, rather than reactive, approach to managing your costs and ensure you achieve the most beneficial outcome for your costs recovery.

PTA time recording systems

One of the most efficient ways to monitor costs managed cases is by utilising a Phase, Task and Activity (PTA) time recording system. If your time recording system allows, every entry that is recorded should be allocated to an appropriate phase, task and activity. The benefit of doing this is that a costs managed matter can be monitored quickly and easily to ensure that the budget is not being exceeded, or if it is, providing the significant development criteria is met, then an application to vary the budget can be made promptly. This will also allow you to keep your client regularly updated on how much of the budget has been spent within each phase and make them aware of any potential shortfall well in advance. It also allows you to factor this into the case strategy.

Regular monitoring

As aforementioned, one way a case can be monitored is by way of a PTA time recording. However, not all systems are equipped to process this information. If you find yourself in this position, then we can carry out regular phasing exercises on your behalf using an export of your time ledger. Following this, we will present you with the budget monitoring data and the options going forward. It will be clear how much of the budget you have used in each phase and whether there is likely to be an overspend.

Budget revisions

For a budget revision application to be successful, you must satisfy a two-stage test; that the budget variation is due to a ‘significant development’ and the application is made ‘promptly’ as required by CPR 3.15A (2).

If you have been utilising the 2% budget process provision then you will have early notice of and be able to make an application to vary a costs budget promptly. Master Kaye held in Persimmon Homes Ltd and Anor v Osborne Clarke LLP and Anor [2021]that an application made 10 months after the alleged ‘significant development’ was not prompt enough and the variation was refused.

If a ‘significant development’ arises that has not been provided for in the assumptions to your Precedent H, and ‘was not one which ought to have been reasonably anticipated before it happened’ as per Master McCloud in Thompson v NSL Limited [2021], then an application to vary a budget should be considered. Clear budget assumptions and a good CCMC note can hugely improve the strength of your grounds for revision and the prospects of being successful.

‘Good reason’ to depart from budget

If following settlement, a case which has been costs managed and is to be assessed on the standard basis, costs in any given phase exceed those on the costs management order then the overspend may be allowed if it can be shown there was ‘good reason’ to depart from the budget. It is however advisable to ensure the revision route is explored initially and without proper definition, and because it is a discretionary power which the judge will consider based on case circumstances, using ‘good reason’ as an overspend justification really is a last resort.

This brings our mini blog series to a close. We hope it has been useful and please get in touch if you have any queries at all relating to budget process provision and how we can assist you in making the most of the costs management regime.

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