Tag: clarion costs blog
The Precedent T; a new Costs Management precedent, watch this space!
The CPRC have released minutes of their latest meeting. The committee has provided further information regarding the proposals and options relating to revisions to CPR r3.15 and PD 3E, please follow this link to see our previous update.
CPR r3.15 will be re-drafted stating that revisions to budgets are made promptly rather than the initial suggestion that revisions are made without delay. There will be further amendments to practice direction 3E with the introduction of a precedent T and accompanying rules in relation to the completion of the same. The precedent T will provide much needed structure regarding the process of revising budgets and we are expecting that it will outline how to revise budgets. The intention is that these updates will feature in the October 2020 update to the rules.
Please do not hesitate to give me a call or email if you have any queries regarding revising your budget or any other cost management requirements. More detail regarding the importance of revising the budget can be found in our previous blog here. Remember that the rules provide for incurring 2% of your budget in respect to all cost management matters which includes monitoring and revising budgets.
Sue Fox is a Senior Associate and the Head of the Costs Management team in the Costs and Litigation Funding Department at Clarion Solicitors. You can contact her at sue.fox@clarionsolicitors.com and 0113 336 3389, or the Clarion Costs Team on 0113 246 0622.
COVID 19 update: face to face hearings
HMCTS are consolidating the work of the courts and tribunals into fewer buildings. It has been announced that from Monday 30 March 2020 there will be a network of priority courts that will remain open during the coronavirus pandemic to make sure the justice system continues to operate effectively.
Fewer than half of all court and tribunal buildings will remain open for physical hearings, with 157 priority court and tribunal buildings remaining open for essential face-to-face hearings. This represents 42% of the 370 crown, magistrates, county and family courts and tribunals across England and Wales.
To help maintain a core justice system that is focused on the most essential cases there will be open courts, staffed courts and suspended courts.
The Judiciary recommend that you check which courts are open before you travel. For information regarding the category of each court please follow this link.
Lord Chancellor Robert Buckland has said that it is vital that we keep our courts running. and that:
“An extraordinary amount of hard work has gone into keeping our justice system functioning. Technology is being used creatively to ensure that many cases can continue. Not everything can be dealt with remotely and so we need to maintain functioning courts.
These temporary adjustments to how we use the court estate will help ensure that we can continue to deal with work appropriately in all jurisdictions whilst safeguarding the well-being of all those who work in and visit the courts”.
Staffed courts will support video and telephone hearings and progress cases without hearings and ensure continued access to justice.
The remaining courts and tribunals will close temporarily and these measures will be kept in place for as long as necessary.
Sue Fox is a Senior Associate and the Head of the Costs Management team in the Costs and Litigation Funding Department at Clarion Solicitors. You can contact her at sue.fox@clarionsolicitors.com and 0113 336 3389, or the Clarion Costs Team on 0113 246 0622.
Business as usual
The latest Precedent H guidance notes
The precedent H guidance notes have never aligned with the precedent S guidance notes (Phases and Tasks Reference and Lookup table in Precedent S (bill of costs)) until the update to the precedent H guidance notes which was made last month, this update has addressed some of those discrepancies.
Please find below the amendments that have been made to the guidance notes:
Pre-action: The precedent H guidance notes states that settlement discussions, advising on settlement and Part 36 offers before proceedings were issued are to be included in the Preaction phase. However, in the Precedent S guidance these discussions are included in the ADR/Settlement phase (task “Other Settlement Matters”) . The precedent H guidance notes must be followed therefore any preaction settlement discussions should be included in the preaction phase.
Issue/statements of case: The precedent H guidance notes have been amended to include “amendments to statements of case” in this phase, the previous guidance stated that these should be excluded from this phase. This amendment has resulted in alignment with the Precedent S guidance.
CMC: The precedent H guidance notes have been amended to include any further CMCs that have been built into the proposed directions order whereas previously the notes stated that any additional CMCs were not to be included in this phase. The position remains regarding any estimated CMCs that have not been proposed in the directions order, these are to be included as a contingent cost. Any disclosure work, i.e. list of disclosure issues, EDQ should be included in the disclosure phase.
Budget – The costs in relation to this phase includes inconsistencies which present numerous difficulties. The Precedent H Guidance Notes includes “correspondence with opponent to agree directions and budgets, where possible”, and “preparation for, and attendance at, the CMC”. The same applies in relation to the PTR phase, which includes “preparation of updated costs budgets and reviewing opponent’s budget”, “correspondence with opponent to agree directions and costs budgets, if possible” and “preparation for and attendance at the PTR”. While the precedent H guidance note specifically excludes preparation of the costs budget for the first CMC, it doesn’t specifically exclude preparation of Precedent R. The Precedent S description of this task is “work on budgeting between the parties following initial completion of the first budget, including the monitoring of costs incurred against the budget and any applications for variation of the budget” – it doesn’t mention the drafting of Precedent R and seems to relate to work post CMC.
Furthermore, in para 7.2 of PD3E the 2% cap relates to all recoverable costs of the budgeting and costs management process other than the recoverable costs of initially completing the Precedent H. If some costs budgeting items are included in the CMC and PTR phases (i.e. following the Precedent H Guidance Note), practically how is the 2% figure on the front page of Precedent H calculated? Should it include the budgeting items which appear in the CMC and PTR phases of Precedent H, or is it exclusive of them? And, what exactly is meant by “budget process” in relation to this 2% cap?
Unfortunately there is no guidance regarding the budget process or “associated material” that is referred to in the guidance notes – does this include composite summaries, breakdowns of costs?
One solution for this phase is to time record in line with the precedent S guidance notes and then when it comes to preparing the budget assess what aspects of the % cap belongs in the CCMC stage. If the time is recorded as CCMC it is a more onerous task to ascertain what element of the CCMC phase is relevant to the % cap.
Trial: The guidance note has been amended to now include counsel’s brief fee in the trial preparation phase rather than the trial phase.
Settlement phase: The precedent H guidance note previously excluded mediation from this phase, this has now been amended to include mediation.
Definition of budgeted and incurred costs – CPR 3.15 and PD 3E para 7.4 Incurred costs are now all costs incurred up to and including the date of the first costs management order, unless otherwise ordered. Budgeted costs are all costs to be incurred after the date of the first costs management order.
Sue Fox is a Senior Associate and the Head of Costs Management in the Costs and Litigation Funding Department at Clarion Solicitors. You can contact her at sue.fox@clarionsolicitors.com and 0113 336 3389, or the Clarion Costs Team on 0113 246 0622.
Revising Precedent H Costs Budgets – Don’t delay
Revising Precedent H Costs Budgets
Don’t delay in applying to revise your Costs Budget if a significant development has occurred in your litigation, and on those occasions where there may have been a delay don’t shy away from applying.
It is not left to a party to choose whether to revise its budget and to take its chances on a detailed assessment, parties must apply to revise their budget if there has been a significant development in the litigation – Sharp -v- Blank & Ors [2017] EWHC 3390 (Ch) (21 December 2017) (hereafter Sharp).
In the event that there has been a significant development in the litigation, parties are not able to defer the determination of additional incurred costs to detailed assessment – those incurred costs form part of the request for additional costs:
Master Marsh “I do not consider the rules and practice direction intended that only certain elements of the costs relating to significant developments must be dealt with as revisions with the other elements, those pre-dating the hearing or, on another view those pre-dating the application, being dealt with on a detailed assessment. This approach would run contrary to the purposes of costs management and lead to unnecessary fragmentation of the costs dealt with at a detailed assessment.”
Master Marsh found that the costs incurred from the costs management order and up to the application to revise the Cost Budget were not incurred costs for the purpose of the revision, they were future costs. Master Marsh focussed on the language of the CPR referring to the choice of the use of “future” rather than “budgeted costs”, as follows:
“The language used in paragraph 7.6 is of critical importance because it provides the jurisdiction, on the defendants’ case to make the revisions they seek. It is notable that the language is at variance with the remainder of the rules and PD3E. It refers throughout to the revision of a “budget” (not, in accordance with the new wording, “budgeted costs”). It is explicit, however, that revision is in respect of future costs. The final sentence of this paragraph gives the court a discretion to approve, vary or disapprove the revisions “… having regard to any significant developments which have occurred since the date when the previous budget was approved or agreed”. On one view, such language points towards the last approved or agreed budget being the jumping off point for a revision because it is the budget that is being revised”.
Master Marsh concluded that the “Costs which have been incurred since the date of the last agreed or approved budget (or the antecedent date) that relate to significant developments are, for the purposes of revision, placed in the estimated columns of the revised Precedent H in one or more phase. In some cases, it may not be obvious where they go (for example a late application for security for costs) but I can see no reason why Precedent H may not be adapted as necessary to accommodate work that does not easily fit in”.
He also considered that there would be a degree of retrospectivity if the costs management regime was to work.
It is essential that you apply to revise your Costs Budget if a significant development has occurred in your litigation, to not do so puts you at risk of not being able to recover any costs that are in excess of your budget.
Sue Fox is a Senior Associate and the Head of Costs Management in the Costs and Litigation Funding Department at Clarion Solicitors. You can contact her at sue.fox@clarionsolicitors.com and 0113 336 3389, or the Clarion Costs Team on 0113 246 0622.
A Complete Chronological guide to budgeting case law
There are many case authorities in relation to budgeting since the process was implemented, it is hard to keep track of them all. Here is a complete list of cases.
2014
Appeals
Havenga -v- Gateshead NHS Foundation Trust [2014] EWHC B25(QB)
General guidance
A & B (Court of Protection: Delay & Costs) [2014] EWCOP 8)
Hegglin -v- Persons Unknown & Google Inc [2014] EWHC 3793 (QB)
Thomas Pink Ltd -v-Victoria’s Secret UK Limited [2014]
Yeo-v-Times Newspapers Ltd [2014] EWHC 2853 (QB)
2015
General guidance
BP -v- Cardiff & Vale University Local Health Board [2015] EWHC B13 (Costs)
(GSK Project Management Ltd -v- QPR Holdings Ltd [2015] EWHC 2274 (TCC)
Stocker -v- Stocker [2015] EWHC 1634 (QB))
Tim Yeo MP -v- Times Newspapers Limited [2015] EWHC 209 (QB))
Various Claimants -v- Sir Robert McAlpine & others [2015] EWHC 3543 (QB)
Judicial guidance cases
GSK Project Management Ltd -v- QPR Holdings Ltd [2015] EWHC 2274 (TCC)
Tim Yeo MP -v- Times Newspapers Limited [2015] EWHC 209 (QB)
Late filing of a budget
Simpson -v- MGN Limited [2015] EWHC 126 (QB)
Overspending on the budget
CIP Properties (AIPT) Limited -v- Galliford Try Infrastructure Ltd [2015] EWHC 481 (TCC)
Excelerate Technology Ltd -v- Cumberbatch [2015] EWHC B1 Mercantile)
Parish -v- The Danwood Group Ltd [2015] EWHC 940(QB)
Simpson -v- MGN Limited [2015] EWHC 126 (QB)
Proportionality in budgeting
(BP -v- Cardiff & Vale University Local Health Board [2015] EWHC B13 (Costs)
Various Claimants -v- Sir Robert McAlpine & others [2015] EWHC 3543 (QB)
2016
General guidance
Agents’ Mutual Limited -v- Gascoigne Halman [2016] CAT 21
Campbell -v- Campbell [2016] EWHC 2237 (Ch)
Group Seven Limited -v- Nasir [2016] EWHC 629 (Ch)
Merrix -v- Heart of England NHS Foundation Trust [2016] EWHC B28 (QB)
Signia Wealth Limited -v- Marlborough Trust Company Limited [2016] EWHC 2141 (Ch) –
Agents’ Mutual Limited -v- Gascoigne Halman [2016] CAT 21
Late filing of a budget
Jamadar -v- Bradford Teaching Hospitals NHS Trust [2016] EWCA Civ 1001
Murray -v-BAE Systems PLC (Liverpool County Court, 1st April 2016)
Outcome of budgets and costs of assessment
Sony Communications International AB -v- SSH Communications Security Corporation [2016] EWHC 2985 (Pat)
Proportionality in budgeting
(Considers Agents’ Mutual Limited -v- Gascoigne Halman [2016] CAT 21
Group Seven Limited -v- Nasir [2016] EWHC 629 (Ch)
Revising the budget
Warner -v- The Pennine Acute Hospital NHS Trust (Manchester County Court 23rd September 2016)
The budgeting procedure
Agents’ Mutual Limited -v- Gascoigne Halman [2016] CAT 21
Merrix -v- Heart of England NHS Foundation Trust [2016] EWHC B28 (QB)
2017
Departing from the budget on detailed assessment
RNB v London Borough of Newham [2017] EWHC B15 (Costs)
General guidance
Harrison -v- University Hospitals Coventry & Warwickshire Hospital NHS Trust [2017] EWCA Civ 792
MacInnes -v- Gross [2017] EWHC 127 (QB)
Napp Pharmaceutical Holdings Ltd v Dr Reddy’s Laboratories (UK) Ltd & Ors [2017] EWHC 1433 (Pat)
Judicial Guidance cases
Findcharm Ltd -v- Churchill Group Ltd [2017] EWHC 1109 (TCC)
Woodburn v Thomas (Costs budgeting) [2017] EWHC B16 (Costs)
Late filing of a budget
Asghar -v- Bhatti [ 2017] EWHC 1702 (QB)
Mott & Anor v Long & Anor [2017] EWHC 2130 (TCC)
Outcome of budgets and costs of assessment
Harrison -v- University Hospitals Coventry & Warwickshire Hospital NHS Trust [2017] EWCA Civ 792)
Merrix -v- Heart of England NHS Foundation Trust [2017] EWHC 346 (QB)
Part 36 in budgeting
Car Giant Limited -v- the Mayor and Burgesses of the London Borough of Hammersmith [2017] EWHC 197 (TCC)
Proportionality in budgeting
Rezek-Clarke -v- Moorfields Eye Hospital NHS Foundation Trust [2017] EWHC B5 (Costs)
Revising the budget
Asghar -v- Bhatti [2017] EWHC 1702 (QB)
Sharp v Blank & Ors [2017] EWHC 3390 (Ch)
Sir Cliff Richard OBE -v- The BBC & Chief Constable of South Yorkshire Police [2017] EWHC 1666
2018
Departing from the budget on detailed assessment
Jallow v Ministry of Defence [2018] EWHC B7 (Costs)
Nash v Ministry of Defence [2018] EWHC B4 (Costs)
General guidance
Yirenki v Ministry of Defence, [2018] 5 Costs LR 1177
NB, Re (Consent to sex) [2019]- After 27 Years of marriage, did the Protected Party have capacity to marry and consent to sexual relations with her husband?
The Protected Party came to live in the UK in 1985 and married her husband in 1992. The marriage was contracted abroad. When the Protected Party first came to live in the UK she did so without her husband. There was a period in which the couple were separated whilst her husband made an application for permission to enter the UK, but in May 1996, the Protected Party travelled abroad to return to live with her husband. Following a series of applications to the Home Office throughout 1997, the couple came, eventually, to live together in London. They lived with the Protected Party’s parents and a year later their daughter was born.
The question was brought to the Court relating to the Protected Party’s capacity to marry and subsequent capacity to consent to sexual activity.
Mr Justice Hayden reviewed a letter to the Immigration Appeals department, that was brought before him by the Official Solicitor, dated March 1996, in which a clinical psychologist, Ms Suzanne Wilson, stated:
‘I believe Protected Party’s experience of her husband’s absence is stressful due to her attachment and affection towards him which has developed during their periods together. In her daily life the Protected Party consistently demonstrates her intense attachment to her husband. She often says his name with affection. She repeatedly asks where he is and pleads that he should be with her. She appears to understand the lasting nature of marriage, including that of marriage as a committed sexual bond between a man and a woman. It is my view that the Protected Party would be very unlikely to have such an affectionate attachment to her husband if this were not on a mutual basis and I therefore believe that her attachment can be taken as evidence of her husband’s positive attention and caring towards her when they are together’.
It is important to note that the Protected Party suffered from what is referred to as ‘general global learning difficulty’ and ‘an impairment’ in relation to her ability to communicate with others. She has been, at least historically, assisted using Makaton sign language and her sentences were limited.
As a result of a number of remarks the Protected Party made to her dentist, in October 2014, a safeguarding enquiry was instigated. There is no record of what it was that she said to the dentist, but it was clear that it had something to do with the quality of her relationship with her husband and it was such as to give rise to a concern that she might be vulnerable to sexual exploitation. Very quickly, an education programme was put in place focusing on sex education, relationships, contraception, sexually transmitted diseases as well as more general issues relating to Protected Party’s health.
The conclusion of the assessment was that the Protected Party was unable to demonstrate an appreciation of why people got married, separated or divorced. It was concluded that she lacked the mental capacity to marry. In respect of her capacity to consent to sexual relations it was considered that she lacked an understanding of the association between sexual intercourse and pregnancy. Inevitably, it followed, that she could not link various forms of contraception to the concept of averting pregnancy. She did not have the capacity to retain information in relation to these issues. It was also considered that she was unable to communicate the concept of refusal of sex to her husband.
The Protected Party’s husband was a man in his early 50’s who has never been in any trouble with the police. It was agreed that there had been no concerns expressed by any of the professionals in relation to his behaviour either more recently or historically.
The couple found themselves in a challenging situation in which their private and sexual life was being scrutinised by a variety of professionals. Whilst the Protected Party’s husband was being analysed, he appeared both frightened and embarrassed when he came to Court. On 29 March 2019, when the matter was brought to Court there had been an agreement between the Protected Party’s husband, the Applicant and the Respondent that the case would proceed by way of the Protected Party’s husband giving an undertaking to the Court not to sleep with his wife.
Mr Justice Hayden concluded that he was “Reserving Judgment in order that I can take the time to look carefully and in some detail at the case law and its applicability to the facts of this case. It would appear, that it requires to be said, in clear and unambiguous terms that I do so in order to explore fully Protected Party’s right to a sexual life with her husband and he with her, if that is at all possible.”
If you have any queries, please do not hesitate to contact Georgia Clarke (georgia.clarke@clarionsolicitors.com) or the team at COPCosts@clarionsolicitors.com.
Court of Protection Costs – Types of Assessments for your Costs.
The previous blog in this series focused on the process of what goes into a Bill of Costs in the Court of Protection world. This blog will instead look at the process of an assessment in the Court of Protection and the different types of assessment that can occur.
Firstly, authority for the cost’s assessment must be established, as all Orders as to costs are at the discretion of the Court of Protection. There are three main methods of evaluating costs; agreed costs, fixed costs and summary/detailed assessment of Costs.
- Agreed Costs
These kinds of costs Order are not regularly available in Court of Protection cases. As a principle, all bills of costs must be assessed, except where fixed costs are available. However, the Court may authorise parties to agree costs, where appropriate to do so. This is often used upon the death of a Protected Party whereby the Deputy is expected to agree costs with the Executor of the estate.
- Fixed Costs
Found within Practice Direction 19B, fixed costs are available to solicitors and professionals acting as Deputy. The general rule is that costs of the proceedings should be paid by P or charged to their estate, but this rule can be departed from.
In Cases where fixed costs are not appropriate, professional Deputies may, if preferred, apply to the SCCO for a detailed assessment of costs. However, this does not apply if P’s net assets are below £16,000. In these cases, the option for detailed assessment will only arise if the Court makes a specific order.
- Detailed Assessment
The detailed assessment of costs under Orders or Directions of the Court of Protection is dealt with in accordance with the Civil Procedure Rules. Professional Deputies should lodge a request for detailed assessment with the SCCO (not the Court of Protection or the Office of Public Guardian) using the N258B (request for detailed assessment), accompanied by:
- The bill of costs;
- Documents giving the right to detailed assessment;
- Copies of all the orders;
- Fee notes of counsel or experts;
- Details of other disbursements;
- Postal Address of any person who has a financial interest in the outcome of assessment;
- Relevant assessment fee (£115 or £225);
- The OPG105 (if applicable).
Part 27 of the Practice Direction 17.2(2) states that cases over £100,000.00, complex or other cases are to be dealt with by a Master. The relevant papers in support of the bill must only be lodged if requested by the Master.
Once the bill of costs is lodged in the correct manner, the Costs Officer will review the bundle of documents and assess the costs. The Costs Officer will review the bill of costs alongside the files of papers and decide whether costs have been reasonably, necessarily and proportionately incurred, making reductions, where necessary based on relevant case law and judicial decisions. The bill of costs is thereafter returned to the Deputy for consideration.
Clarion can also assist with requests for reassessment if the outcome is not as expected. If you would like further information about this process, then please do not hesitate to get in contact.
Joshua Sidding is a Paralegal in the Court of Protection Team of the Costs and Litigation Funding Department at Clarion Solicitors. You can contact him at Joshua.sidding@clarionsolicitors.com and 0113 222 3245, or the Clarion Costs Team on 0113 246 0622.
You can also take advantage of our free telephone advice service – available outside of office hours – by calling 07764 501252.
Costs Capping Pilot Scheme
Sir Rupert Jackson’s proposal regarding costs capping is now a reality, with the launch of the voluntary capped costs pilot scheme on 14 January in London, Manchester and Leeds Business and Property Courts.
The aim of the pilot scheme
The aim of the scheme is to improve access to the Courts through:
- streamlining the procedures of the Pilot Courts;
- lowering the costs of litigation;
- increasing the certainty of costs exposure; and
- speeding up the resolution of claims.
The pilot will provide for a cap on recoverable costs for each stage of the case, and an overall cap on the total, rather than a fixed sum. The maximum a party will be ordered to pay will be £80,000.
The promise of a fixed recoverable costs scheme was first made two years ago by Sir Rupert Jackson in his IPA annual lecture “The Time Has Come”. His view was that “high litigation costs inhibit access to justice. They are a problem not only for individual litigants, but also for public justice generally. If people cannot afford to use the courts, they may go elsewhere with possibly dubious results. If costs prevent access to justice, this undermines the rule of law”. He predicted, or perhaps rather hoped, that the fixed recoverable costs project could be accomplished during the course of that year.
However, the flurry of chatter and speculation regarding the fixed recoverable costs scheme was left behind in 2016 and, as we moved into 2017, it was replaced with Sir Rupert’s proposals regarding costs capping, which he advised would follow the model used in the Intellectual Property Enterprise Court.
About the pilot scheme
This newly launched pilot scheme will last for two years. For those cases with a monetary value that are less than £250,000, and where the trial is two days or less, the voluntary pilot scheme is available. It cannot be adopted, however, for any cases where there are allegations of fraud and dishonesty; where extensive disclosure, witness evidence or expert evidence is likely; or where the claim will involve numerous issues and numerous parties.
Agreement of both parties is essential if the pilot’s shortened litigation process is to be pursued. The claim will exit the pilot if there is any dispute by any party in that regard. This shortened process is expected to be less costly, with the initial statements of case being limited in length and accompanied by the documents upon which the party proposes to rely.
Further, witness statements will also be limited in length, with the general rule being reliance on oral evidence of two witnesses. There are restrictions placed on expert evidence, which will only be permitted if the court is satisfied that it’s necessary, and it is likely to be on a single joint basis.
The trial judge will take a hands-on approach, to ensure that the trial estimate is adhered to, and has the power to strictly control cross-examination. When the several imposed time limits for filing the documents are considered collectively, the whole process – from the issue of the claim to the hearing of the trial – should not exceed 11 months.
The costs for each phase of the litigation is restricted to the cap and an assessment of costs is still required. Costs budgeting and detailed assessment are not applicable, with summary assessment being the favoured choice of the rule makers. The normal practice of filing the statement of costs prior to the hearing and the assessment of those costs then taking place at the trial will be avoided. Instead, the parties shall file and exchange schedules of their costs incurred in the proceedings not more than 21 days after the conclusion of the trial.
The schedules shall contain details regarding each applicable stage in the Capped Costs Table. The maximum cap of £80,000 for recoverable costs does not include court fees, VAT, enforcement costs and wasted costs, which are claimed additionally.
For those instances where Part 36 offers have been made the cap is increased to £100,000, and so Part 36 offers continue to play a central role.
With claims now able to be issued and pursued to trial in less than 12 months, and with costs not exceeding £80,000, will more parties engage in litigation? Or, conversely, will this restriction on the amount of costs that can be recovered be off putting? Only time will tell.
Sue Fox is a Senior Associate and the Head of Costs Management in the Costs and Litigation Funding Department at Clarion Solicitors. You can contact her at sue.fox@clarionsolicitors.com and 0113 336 3389, or the Clarion Costs Team on 0113 246 0622.
