Tag: clarion costs blog

The Local Authority seeks orders to restrict the Husband’s contact with the Protected Party.

caseymcgregor1Leave a comment

The case of SR v A Local Authority & Anor (2018), involves the Protected Party (SR), who was an 83-year-old woman who suffered from late onset Alzheimer’s, which was of moderate to severe intensity.

The Protected Party resides at a care home and lacks capacity to decide who she has contact with and to decide on any arrangements for such contact. The Local Authority raised awareness that the Protected Party may be at risk of harm in her husband’s sole care, due to his expressed views on euthanasia, which involved reference to throwing himself and his wife into a river and supplying her with tablets. The Protected Party’s husband also had restrictions placed on the care that he could provide to the Protected Party, such as having to be accompanied if he took her out of the care home. The Protected Party’s family wished for her to return home and the Protected Party has allegedly stated her wishes to be with her husband as she becomes distressed when he leaves her.

In determining whether the Protected Party would be at risk, the court reached the conclusion that the restriction sought by the Local Authority was neither justifiable, proportionate or necessary. They therefore declined to make the Order sought. It was believed that the Protected Party’s husband would most likely not harm the Protected Party, as he had been previously been with her many times unaccompanied. The Protected Party’s daughter also stated that her mother and her father were a happy and loving couple with no allegations of domestic violence ever having been made between them.

Advertisements

A new year, a new statement of costs. But why stop at that? A few intended changes to Costs Management too

Sue FoxLeave a comment

The CPR committee have been hard at work again coming up with solutions to the problems that have been encountered by the legal profession since the Jackson reforms nearly 6 years ago.  Following the scratching of many heads, a few of those creases have been ironed out and the following proposals have been made:

Statements of costs

A voluntary 2 year pilot scheme for the new statement of costs will be implemented, starting from 1 April 2019.

The current proposals are for two new forms of costs statements, namely N260A and N260B which may be used for summary assessment. These new forms will  include a VAT declaration and the forms will now include the signature of a legal representative, which is in line with the rules, as opposed to a company partner. The Form N260A will cross refer to the document schedule in the summary. No model forms are available yet.

Master Howarth has suggested that the precedent Q, the document that identifies whether there has been an under or overspend in a phase of a budget, is incorporated into the statement of costs. This will create transparency at the summary assessment stage regarding the amount incurred in comparison to the approved budget – supporting the need for a well drafted budget.

The committee is to give consideration to lower value cases and the relevance of statements of costs for those cases where there will never be a summary assessment, as there was concern regarding the wasted costs incurred in those instances.

Costs management

The precedent H costs budget will remain the same, but there will be some adjustments to the guidance notes to align costs budgeting with the new electronic bill approach.

There has been many a debate regarding what date the incurred costs should be included up to in the budget and there is tension in the wording of the rules in that regard. The committee have recognised this and have debated the very same problem. They have understood that differing practices appear to be in place and that overall there is value in a consistent approach. It has been advised that this issue should be resolved as part of a future review of the practice direction.

There will be some adjustments to the precedent R, however that is the only guidance that has been provided at this stage, so the amendments remain unknown for the time being.

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.

 

Voluntary capped costs pilot scheme in the Business Courts

Sue FoxLeave a comment

Following on from my blog and newsletter (see below) over a year and half ago, it has now been announced that the capped costs pilot scheme will go live in January 2019 to coincide with the launch of the disclosure pilot scheme. The capped costs pilot scheme will apply to the Business and Property Courts in Leeds and Manchester (Chancery, Circuit Commercial and the Technology and Construction Court) and the London Circuit Commercial Court.

It is a voluntary scheme that will last for 2 years, with costs capped at £80,000.00.

—————————————————————————————————————————————–

Blog published 20.06.17

Fixed Recoverable Costs – the pilot scheme

Following on from my newsletter below, the Civil Procedure Rule Committee meeting notes have been published today. Last month I explained how Jackson LJ had suggested how ‘capped fixed costs’ would work. The meeting notes have now confirmed how the pilot scheme will work, explaining that costs for preaction would be capped at £10,000, for particulars of claim at £7,000 and for defence and counterclaims at £7,000.

Many thanks to John Hyde of the Law Society Gazette who has reported that “Parties can claim up to £6,000 for a reply and defence to the counterclaims, £6,000 for the case management conference, £6,000 for disclosure and £8,000 for witness statements. Expert reports are capped at £10,000, with the trial and judgment costs limited to £20,000.

The working group dedicated to the pilot scheme proposes an overall cap of £80,000 rather than setting an actual fixed amount at this stage.

The proposal, backed in principle by the committee, is to run the pilot in certain specialist civil courts: the London Mercantile Court and three courts in each of the Manchester District Registry and Leeds District Registry. Any cases where the trial will go beyond two days, or where the value is more than £250,000, are excluded”.

—————————————————————————————————————————————–

Clarion May 2017 Newsletter

Fixed Recoverable Costs. A taster of how the pilot scheme may work.

The judiciary have released an outline regarding how the fixed recoverable costs regime may work. Jackson LJ attended a costs seminar in Birmingham back in March 2017, which focused on mercantile and business litigation. At that seminar both Jackson LJ and HHJ Waksman outlined their proposals for the fixed costs pilot scheme, those proposals being subject to the approval of the Civil Procedure Rules Committee. The details of their proposals were as follows:

The pilot scheme will run in the London Mercantile court, and Manchester and Leeds specialist courts.

  • It is likely that the pilot will commence in October 2017 and will last for two years.
  • The pilot scheme is optional.
  • There will be a separate fixed costs list.
  • The pilot can be joined at certain stages:
    • The pre-action stage
    • No later than 14 days after service of the defence
    • At the case management conference (CMC)
    • Claimants can commence proceedings in the fixed costs list.

The Defendant has an absolute right to object to this, and if so then the proceedings would be removed from the fixed cost list.

  • The CMC will be the last opportunity to join the pilot.
  • Parties will not be able to withdraw from the pilot, apart from the Defendant if the Claimant issues in the pilot scheme (see above).
  • There will be a shortened process with strict case management .

The pilot is currently a ‘work in progress’, however it is envisaged that these proposals will be making their way to the Civil Procedure Rules Committee in June 2017, so these could be public by July 2017. It is currently predicted that:

  • Parties will be required to file their “core documents” (the documents that are relevant to the issues in the claim) with their statements of case, i.e. the particulars of claim, defence, reply and defence to counterclaim.
  • There will be no need for further disclosure, unless parties can justify this at the CMC.
  • If further disclosure is required, parties will need to apply for the same before the CMC. If the parties cannot agree, an order will be made.
  • At the CMC, the judge will suggest Alternative Dispute Resolution (ADR), including Early Neutral Evaluation (ENE).
  • The CMC will be the only interim hearing, this will include setting the trial timetable.
  • Consideration is being given to limiting the number of witnesses, the thoughts are that there will be one factual witness on each side.
  • Costs budgeting will not be required and there will be no pre-trial review.
  • The trial length will be up to two days (excluding judicial reading)
  • Cross-examination will be “very strictly controlled”.
  • An early hearing date will be guaranteed.
  • Judgments will be produced within a short period of time.
  • Pilot participants can expect “active and proactive” case management.
  • Costs will be summarily assessed at the end of trial.

The above proposals were made in March 2017, however since then there have been further proposals, as follows:

  • The pilot will only relate to claims that are less than £250,000.
  • The pilot will only relate to claims where the trial is no more than 2 days.
  • The pilot will only relate to non-complex matters.
  • The maximum costs that will be allowed will be £80,000. The pilot scheme will be similar to the IPEC costs regime. There will be caps for phases of litigation and those phases will be the same as the phases used in costs budgets.
  • Parties can only leave the scheme under exceptional circumstances, examples of those circumstances are; allegations of fraud, if the matter subsequently is listed for a 3 day trial.
  • Judgment will be handed down within 6 weeks.
  • The proposed ‘grid’ is not yet available and it is likely that this will not be available until the practice directions are published, so it may make its way into any July update to the rules. The main benefits of the pilot scheme are that claims will be resolved speedily and parties will be more aware of their potential costs exposure.
  • We will continue to provide updates regarding fixed costs, as well as all costs related law.

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.

Court of Protection Costs – How to get paid and what happens to your costs?

joshuasiddingLeave a comment

As many hard-working solicitors are focused on ensuring their clients get the best service, it is possible for them to lose sight of their own costs. Here is a refresher guide to the procedure for getting paid.

The Payment Process

The process begins when the anniversary of the Order/matter completes, and the files are sent to your Costs Lawyer or Law Costs Draftsman; at Clarion, we offer the expertise of both. It is good practice to do this annually, as close to the end of the annual management year as possible (Section 6 of PD19B). This means that no costs are lost if there is an overlap period from the previous months or years.

Secondly, whilst the file is with your trusted Costs Lawyer or Law Costs Draftsman, the Bill of Costs is prepared. A Detailed Bill is required for matters with profit costs exceeding £3,000 and a Short Form Bill is needed for matters with profit costs lower than £3,000. There is no difference in the procedure for the bills – the difference in their names reflects their differing length and the amount of detail that they contain.

The Bill of Costs is then completed and, along with supporting documents, filed with the Senior Courts Costs Office (SCCO) for assessment, after which its returned by the SCCO to your lawyer.

Process for reassessment

Upon reviewing the assessment, if you are unhappy with it, you can lodge a request for reassessment with the SCCO. Here at Clarion, we are more than happy to review any assessments and consider an appeal; we can also lodge the request for reassessment on your behalf. Please get in touch with a member of our Costs Team to find out more.

The process for the request for reassessment is as follows:

  • If you are unhappy with the outcome of the assessment, you can request a reassessment within 14 days of the original assessment.
  • The Bill of Costs is returned to the Costs Officer for reconsideration in respect of the points appealed.
  • The Costs Officer will generally accept where they have made an error. They base their assessment on the points raised before them, so these points need to be justified; Costs Officers have been known to be unpredictable.
  • If you are still unhappy with the assessment, you can proceed to an oral hearing before a Costs Master, but be aware that this can be an expensive and timely process.

When you are happy with the assessment outcome, copies of the assessed Bill of Costs are served on the interested parties (if applicable) who have 14 days to challenge the Bill.

Once the assessment is finalised then a Costs Summary can be completed and filed with the SCCO, allowing the Costs Certificate to be drawn, and you to get paid.

Then the procedure will repeat, as and when the time period (annually) completes, although there are various scenarios which would result in changes to the process as described above. In these circumstances, get in contact with our team and we can assist, where necessary, to ensure that you are paid.

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.

Getting paid properly – Costs Estimates

Sue FoxLeave a comment

Costs Estimates

Why provide an estimate of costs to your client in respect to their legal claim?

It keeps your client informed and therefore there are no surprises, this in turn manages your client’s expectation. This helps to avoid any dispute regarding the level of fees.

However, there is also the techy but important part!

Failure to provide information about costs and funding options for litigation is a breach of the Solicitors Regulation Authority Code of Conduct 2011 (SRA Code 2011),  your obligations are to “clearly explain your fees and if and when they are likely to change”.

Consequently, keep your estimate up to date, monitor the estimate and advise the client if the estimate requires changing – prospective thinking is the key.

The estimate must be clear and concise, must be worded in a way that is appropriate for the client and must be given in writing and regularly updated. The client should be provided with a detailed estimate, not just a ball park figure.

A solicitor is required to undertake a cost benefit analysis. The Code’s requirement in Rule 2.03 (6) is that “a solicitor discusses with their client whether the likely outcome in a matter will justify the expense or risk involved, including, if relevant, the risk of having to bear an opponent’s costs”.

It is essential that the cost-benefit analysis must be kept under review throughout the matter and reviewed with the client at key stages.

What is the impact of not providing an estimate?

Your client may argue that they would have given different instructions/or not proceeded with the matter if they had known: how expensive the claim would be, the length of time it would take, the level of their legal costs that would be recoverable from the other side and also their liability for the other side’s costs.

What if the client asks you to undertake out of scope work?

Explain that the estimate does not cover the additional work and provide a further estimate of the additional work. Advise the client if there is any risk that this work may not be deemed recoverable from the other-side. Failure to do so may result in those additional costs being disallowed.

Is a solicitor bound by their estimate?

Sort of!

If the client requests an assessment of their costs in accordance with the Solicitors Act, the estimate may be used as a “yardstick to measure reasonableness”. Any estimates that have been exceeded because they are simply wrong will be taken into account, together with the circumstances surrounding it, i.e. the reliance the client placed on the estimate and costs reduced accordingly.

Always provide a realistic estimate

Keep your estimate realistic at the outset. Even regular updating might not subsequently save a bad original estimate. The court’s view is that the first estimate is a critical piece of information for a client’s decision whether or not to embark on the action.

The Code’s requirements are for “best” information to be provided about costs. Therefore providing low estimates are unlikely to comply with the SRA Code of Conduct.

IN SUMMARY

Always provide a detailed estimate of costs.

Prepare a realistic estimate of costs.

Monitor the estimate and revisit with client throughout – costs/benefit analysis.

Identify and advise regarding out of scope work.

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.

 

Clarion Costs Legal Updates

Sue FoxLeave a comment

We have incorporated a collection of our blogs into a Blog booklet. The blogs were current at the

date of publication, however these may have now been superseded. Please visit our blog

(https://clarionlegalcosts.com/) for continuous updates on all costs law.

• Page 1 – Introduction

• Page 2 – Good news for those that prepare an accurate costs budget by Sue Fox

• Page 4 – Fixed Costs – the effect of acceptance of a Part 36 offer by Matthew Rose

• Page 6 – Payment on Account or Final Invoices? – another solicitor/own client costs

battle… by Andrew McAulay

• Page 7 – The Disclosure Pilot Scheme – what roles do costs estimates and precedent H

costs budgets have? by Sue Fox

• Page 8 – Proportionality – a flurry of cases by Andrew McAulay

Joanne Chase

• Page 9 – Part 36 offers, the basis of assessment, and knowing your expert by

Joanne Chase

Please click here

For any assistance, please contact the Costs and Litigation Funding Team at Clarion Solicitors 0113 246 0622.

 

 

Partial strike out of the budget – Page v RGC Restaurants Ltd !

Sue FoxLeave a comment

Partial strike out of the budget in the case of Page v RGC Restaurants Ltd !

Be wary when preparing budgets, do NOT prepare a budget up until a particular stage, unless the court orders otherwise. In this case, the Claimant had decided to prepare their budget up until the PTR stage only, the Master found that they had not complied with the CPR and limited the budget to court fees only. The Claimant appealed the decision on the grounds that a budget had been filed, questioning the Master’s irrational approach of limiting the budget to court fees, claiming that CPR 3.15 (the fact that the parties had agreed the Claimant’s budget up to the PTR stage) trumps the sanctions imposed by CPR 3.14 and submitting that the default sanction should be dis-applied. 

On appeal, the Master found that this was partial non-compliance rather than full non-compliance. So rather than striking the full budget out, the court struck out those phases of the budget where forecast costs had not been provided.

It has to be said, the preparation of partial budgets makes assessing proportionality impossible, which is an essential part of costs management. 

In practical terms, this is important for split trials. My advice has always been NEVER to prepare a budget up to the first trial, unless the court orders otherwise as there is the risk that the court will deem this to be non-compliant and the budget may be reduced to court fees. We now have case law which provides guidance regarding the approach to be adopted, which is helpful.  

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.