Tag: Clarion Costs Team

Lancashire & South Cumbria NHS Foundation Trust & Lancashire County Council v AH [2022] EWCOP 45

Leah MorrisLeave a comment

The case of Lancashire & South Cumbria NHS Foundation Trust & Lancashire County Council v AH [2022] EWCOP 45 is a recent significant case as it is in respect of a judgment concerning whether a patient with diabetes and a learning disability has capacity to decide issues around their treatment.

Background of the case

P is 46 years old and has type 1 diabetes. If P is provided consistently with insulin, she is able to live happily and healthily. However, if she is not, she is at significant risk of serious harm and even death. She had been hospitalised in late 2021 as a result of being without insulin, however before this had resided independently within the community. There were however concerns with regards to P suffering from a mild learning disability and a suspected personality disorder, and her ability to manage her diabetes and ensure the regular administration of insulin within the community, and as such an application was made to the Court to request that P be admitted to a care home placement on release from hospital for assessment, which was subsequently granted.

History of P

There was previously an involvement of a diabetes nurse and the diabetic clinic, with P appearing to have been the patient of both diabetes clinics and the community mental health team in the early 2000s. There have been previous instances of P refusing insulin, and on one occasion not taking insulin as required and eating chocolate deliberately. P has had involvement with and input from the community mental health team where she lives since 2018. There have been ongoing concerns over her physical health from the diabetes nurses. She has shown a reluctance to register with GP’s, despite being offered assistance in doing so by the community mental health team.

Capacity Report

Dr Camden-Smith, a Consultant Psychiatrist with a specialism in Neurodevelopmental Disability Psychiatry, was jointly instructed to carry out a capacity report on the key decision-making areas. This included assessing P’s capacity in regard to making decisions about residence, care, treatment, conduct of proceedings and consent to a possible deprivation of liberty.  Dr Camden-Smith recognised that capacity in this case was difficult and recorded that there had been differing outcomes to capacity assessments within the currency of these proceedings. Dr Camden-Smith ultimately concluded that P lacked capacity with regards to all of these areas, and confirmed P’s diagnosis of a mild learning disability, but also noted that P demonstrated traits of a personality disorder and noted evidence that would suggest P to be autistic also. 

Law

The law relevant to this case is contained in the early sections of the Mental Capacity Act 2005 (MCA). There is a presumption of capacity which may only be rebutted by evidence to the contrary which is accepted by the Court on the balance of probability, and it is possible for an individual to have capacity in one regard but lack it in relation to another.

Outcome

It was noted that P lacked the ability “to recognise, let alone to understand that she has mental health needs due to a combination of learning disability and personality disorder (and perhaps autism) that makes it impossible for her to understand that her own chosen care plan is not feasible. Further, she is unable to understand the consequences of her behaviour on the care that she receives and continues to behave in maladaptive ways despite repeated evidence of the harm that this causes to her.”

Conclusion

His Honour Judge Burrows concluded that ‘it would be sensible, if the Local Authority as supervisory body agrees that P lacks capacity, that the author of the report ought to carry out the assessment for the purposes of the DOLS, if that is possible. Alternatively, [he] would expect any mental health or mental capacity assessor to have access to the report and any judgment such as this that has dealt with the issue of capacity. For those reasons, [he gave] permission for Dr Camden-Smith’s report and this judgment to be disclosed to any mental health or capacity assessor in respect of P”. The issues of best interests and residence were stated to be determined at a later hearing.

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

Joint and Several Liability and Litigation Funding Agreements

Joanne ChaseLeave a comment

In ECU Group Plc v HSBC Bank Plc [2022] EWHC 1616 (Comm) Moulder J addressed the issue of joint and several liability in a case involving multiple litigation funders.

Background

The matter involved fraud proceedings, where the Defendant having successfully defended the matter, applied under the Senior Courts Act 1981 s51 for an order requiring a specific litigation funder to pay the Defendant’s costs. The funder in question had the dominant financial interest in the litigation and had effectively controlled the proceedings. Whilst the funder was one of several commercial funders its contribution amounted to 66%. After providing judgment for the Defendant, the court ordered the Claimant to pay the Defendant’s costs to be assessed on the indemnity basis. In addition, the funder was added as a party for the purpose of costs.

In response the funder submitted that it should only be liable for costs in the same percentage as its contribution, and only for costs incurred after the date of the litigation funding agreement.

It was held that the funder should bear joint and several liability with the Claimant for the Defendant’s costs irrespective of the other litigation funders. It was emphasised that the funder in question had the dominant financial interest and had controlled the litigation. The court held that the Defendant, who had no choice but to incur costs of defending the claim, should not be in a position where recovery of the costs should be reliant on its pursuit on numerous individuals/entities, with potentially an uncertain outcome. The funder was subsequently jointly and severally liable (with the Claimant) to pay the Defendant’s costs.

Summary

The matter can perhaps be seen as a warning shot to litigation funders who have a dominant financial interest and who seek to control the direction of the litigation. Whilst these funders stand to gain the most if a case is successful, they may also be held to be liable for the full amount of costs if a case is unsuccessful. The matter emphasises the courts wide discretion in relation to costs and a funder with a dominant interest may not be able to rely on the existence of other funders to reduce their liability.  The court considered that it would not be reasonable for the Defendant to have to pursue numerous funders where one dominant financial funder exists.

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

Absence of a Signature on a Solicitor/Client Statute Bill is not Always Fatal

Joanne ChaseLeave a comment

In Sweeney v Wise Solicitors Ltd [2022] EWHC 2314 (SCCO) Costs Judge Rowley dismissed a claimant’s application for an assessment of costs against his former solicitor.

Background

The claimant instructed the defendant firm of solicitors in a personal injury action.  In that action he received £3,000 by way of interim payment.  This was sent to him, together with a note that any deductions would be made at the end of the case. 

At settlement on 26 July 2021, the claimant then received a further £10,000.  The defendant deducted 25% of the total damages by way of fees (that is 25% of £13,000). The claimant took umbrage, stating that he expected the deduction to be 25% of the £10,000.

In response the defendant firm provided invoices breaking down the fees and the deduction. The claimant told the solicitors that if the deduction was not discounted then he would bring an action to recover the whole of the 25%. The defendant declined and the claimant was directed to consider the agreement that the claimant had signed up to at the commencement of the claim.

The claimant then signed a consent form allowing the defendant to pay to him the settlement damages, less the 25% deduction on 100% of the damages.

The claimant contacted a third party firm to bring a claim against his former solicitor who then issued an application under s70 of the Solicitors Act 1974 seeking an assessment of the costs. However, they did not bring the claim until more than 30 days had elapsed since the defendant had provided the invoices, in breach of the time limit provided for by the Act.

The defendant solicitors sought to strike out the action on two, different grounds.

First ground

It was argued that the invoices could not be assessed as bills because they had not been signed and they had been provided by email.

The judge found that final statute bills had been delivered to the claimant and so he was entitled to bring s70 proceedings in principle based upon the invoices delivered.

The judge provided his reasoning, including the following:

“Where, as here, the client is in possession of invoices which are ostensibly suitable for assessment under the Act, the absence of a signature by the solicitors seems to me to be of no consequence. As was expressed by the Court of Appeal in Ex Parte d’ Aragon [1887] 3 TLR 815, and referred to in Parvez, relying on a lack of signature is not an attractive device for a solicitor to seek to avoid the scrutiny of his bill by the court when requested in time by the client to do so.”

“S70 requires the bill to be delivered but is not prescriptive as to how that delivery is undertaken. Consequently, there is also no need for me to consider the question of whether a bill can be delivered electronically without the consent of the recipient.”

Second ground

It was then argued that the action seeking an assessment of costs was issued more than 1 month after the defendant had provided the invoices, in breach of the time limit provided for by the Solicitors Act 1974. The assessment could therefore continue only if the claimant could show special circumstances that allowed him to bring a claim out of time.

The judge confirmed that a client needs to agree to monies being applied to pay the bills. “Mere acquiescence” is not sufficient and the existence of the retainer between solicitor and client is not sufficient in itself either.

In this case, however, the claimant had signed an authority within 8 minutes of receiving it on 26 July 2021. That authority specifically stated that the claimant understood and consented to the deductions and that he further understood that he was not liable for any other shortfall in the solicitors’ charges. The judge considered whether the claimant agreed to the deduction. Because he signed an authority form it was perfectly clear that he did. The judge inferred that:

“…the claimant simply wanted to hold onto as much of his damages as possible because he was not satisfied with the end figure. That view might be entirely reasonable in itself but it does not support an argument that the claimant was pressured into authorising the solicitors to retain monies from the damages.”

The judge found the bills had been paid on 26 July 2021. The claimant had therefore needed to issue proceedings by 25 August 2021.  Proceedings were, in fact, issued after that date.

Whilst the breakdown provided did confirm the time limit, the judge found that solicitors are not under any obligation to inform their client of the time limits in relation to the assessment. He relied upon the very recent case of Richard Slade and Company LLP v Erlam [2022] EWHC 325 (QB) . In this case HHJ Gosnell, sitting as a Judge of the High Court, expressed the view that previous case law did not say that a solicitor should tell the client that, if such a bill had been delivered, this started the clock running for the purposes of an assessment under the Act. He pointed out that it was not normal for provisions explaining the legal consequences of contractual terms to be applied into a contract unless there was some additional statutory or regulatory obligation to do so. If there had been any perceived need for consumer protection, it had not resulted in any change to the Act or other regulatory reform.

The judge found that the claimant was aware of his rights, but did not bring the proceedings in time.

“There is nothing to which he can now point to cause the court to exercise its discretion in holding that any special circumstances exist.”

Accordingly, the defendant’s application to strike out the claimant’s application under s70 was successful.

Should you have any questions, you can contact the team at CivilCosts@clarionsolicitors.com

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

The Electronic Bill Pilot in the Senior Courts Costs Office

maidiedeightonLeave a comment

From 1 November 2022 until 28 April 2023, professional Deputies appointed by the Court of Protection, their legal representatives and other legal professionals involved in Court of Protection cases are able to submit bills in respect of general management and other applications where the relevant authority has been obtained from the Court of Protection in electronic spreadsheet form, known as the E-Bill.

Approved templates for use are available via the judiciary website, https://www.judiciary.uk/guidance-and-resources/electronic-bills-in-court-of-protection-cases-pilot-in-the-senior-courts-costs-office/ and E-bills are to be filed using CE File. When filing an E-Bill, the options titled ‘COP-E’ in CE File should be selected, and once assessed by the Costs Officers, the bills will be returned electronically.

In accordance with the start of the pilot scheme due to commence on 1 November 2022, the Costs Team at Clarion will be fully prepared for this change and will proceed with drafting E-Bills on behalf of our clients. 

Please read Stephanie Kaye’s blog ‘The COP E-Bill – the good, the bad and the technical’ for further information regarding how the E-Bill will work, how to prepare the bill and the impact on COP practitioners.

The COP E-Bill – the good, the bad and the technical

If you have any questions, please do not hesitate to contact Maidie Deighton at maidie.deighton@clarionsolicitors.com.

Requirements for the electronic file of papers

Casey McGregorLeave a comment

Once you have e-filed your bill of costs, you should receive an email of acceptance from the SCCO, which requires you to file your papers in support within 28 days of receipt of the acknowledgement. A file of papers is required by the SCCO for assessment, be it a paper file or a PDF file, this is so the Costs Officer can review the evidence of all work done in order to carry out their assessment, alongside the bill of costs. You have to select electronic bundle rather than the paper file when you are e-filing the bill of costs so that the SCCO know what file format to expect.

Electronic files of papers are only recently accepted, but as a result of the SCCO’s outdated software, they have particular requirements surrounding how it should be submitted. For that reason, if you are submitting an electronic file of papers, it is required to be an e-bundle.

The guidance received from the SCCO states that it needs to be in PDF format, ideally with an index at the front so the SCCO can easily navigate. The SCCO specifically request that the uploaded files should be in the following format:

  • The file must be named with the SCCO case reference e.g. SC-2020-COP-001234 and the protected party’s surname.  If the bill is for General Management, please include the period covered.
  • All documents should be in chronological order from the oldest to the newest. Ideally, you should include an index and hyperlink.
  • If you upload your papers as more than one file, each file should be labelled so that the contents can be clearly identified by the Costs Officer e.g. SC-2020-COP-001234 file 1- Jan-Mar, SC-2020-COP-001234 file 2 – Apr-May.
  • The OPG102, OPG105, the client care letter and any invoices for disbursements or counsels’ fees should appear at the start of the file.

There are various different bundling software packages that are available to prepare your e-bundle, an example of a software that can be used is Bundledocs.

Please find the link for the HMCTS Document Upload Centre – Professional Users Guide for further information:

Click to access Document-Upload-Centre-user-guidance.pdf

If you have any questions, please do not hesitate to contact Casey Mcgregor at casey.mcgregor@clarionsolicitors.com

Summary of the updates from the SCCO regarding COP Assessment Delays

Stephanie KayeLeave a comment

Yesterday, the SCCO have released a further notice in relation to the ongoing delays with COP assessments.

In summary, turnaround is as follows at present:

  • Bills received at the beginning of March are currently being assessed
  • The Admin Team are processing the return of assessed bills received back from the Costs Officers in the first week of August
  • New filings for assessment received from the second week of August are being considered for acceptance/rejection
  • Certificate request filings received in the second week of August are currently being reviewed and actioned

Please see the link below for the full notice released:

Notice-to-COP-Customers-22-August-2022Download

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

Optimising Costs Management: Part 2

Joanne Chase1 Comment
You can listen to the blog here

This is the second entry of a three part series on costs management. Part 1 can be read here. Part 3 can be read here.

CPR 3.15(5) confirms that the amount recoverable in respect of preparing the Precedent H is capped at 1% of the approved costs budget but all other costs of the budgeting and costs management is capped at 2% . Twice as much is therefore permitted for costs management as to prepare the costs budget. Why is this the case?

This 2% allows for preparation of Precedents R, all of the negotiations on budgets, analysis, advice, preparation of supplementary documents for CCMC and the costs lawyer’s attendance at CCMC (or drafting instructions to counsel). Following the CCMC the budgets will need to be finalized and agreed before being filed at court. But that is not the end of costs management.

Ongoing monitoring of costs incurred after the budget has been set makes staying within budget significantly simpler, while still achieving a good outcome for your client, and it will mean that problems are identified early and can be rectified.

However, if circumstances change following the setting of the costs budget then CPR 3.15A allows for revision and variation of costs budgets on account of significant developments. Indeed a party must revise its budgeted costs upwards or downwards if significant developments in the litigation warrant such revisions, and must do so promptly. If you know how much scope is left in each phase then it will be much clearer what revisions are required, thereby allowing it to be dealt with ‘promptly’.  

If you do exceed your costs budget without a good reason, those costs are not recoverable from your opponent. Of course, you may be able to recover any overspend from your client, depending on the terms of your retainer, but then it is absolutely vital that you have kept your client informed regarding their legal costs throughout the claim.

For example, if you did not get the outcome you wished for at the CCMC it should be common practice to provide a client with a copy of the approved costs budget and an explanation given regarding why the approved costs differs from the filed costs budget.

In ST v ZY [2022] EWHC B6 (Costs) the importance of keeping a client informed regarding their legal costs was emphasized.

This claim involved a fatal motorcycle accident where ST, the deceased’s partner, brought proceedings on behalf of the deceased’s estate, herself and her 4 children as dependents. The matter was budgeted, but when the matter settled the Court ordered that the Defendant should pay ST’s costs of the claim only on behalf of a single Claimant as a dependent, and as administratrix of the deceased’s estate.

Costs between the parties were then settled by agreement between the parties. However, because she was a protected party, an assessment of the Claimant’s solicitor and own client costs was ordered.

At the assessment it was identified that the Claimant’s solicitors had failed to advance any argument to support a good reason to depart from the budget in relation to the majority of the exceeded phases and had offered to accept the approved figures. In doing so they conceded £25,052.69 which they then sought to recover out of the Claimant’s damages. The judge noted:

“Telling the client that some costs might not be recovered from the other side is not sufficient. ST should have been told that the budget was being exceeded by a wide margin and that, as a result, those costs might not (and, indeed, almost certainly would not) be recovered from the other side.”

Focus is often placed on monitoring the budget to identify whether it needs to be revised in the event of a significant development. However, managing clients’ expectations of costs is required, and informing them if a budget has been exceeded is vital. Without this, it is highly unlikely that an overspend will be recoverable.

Given the CPR’s allowance for recovery of costs management fees there is no good reason not to instruct a costs professional to assist with all aspects of costs management following preparation of the costs budget.

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

Optimising Costs Management: Part 1

Anna Lockyer2 Comments

You can listen to the blog here

2% Budget Process Provision

Once costs budgets are prepared, Precedent Rs and negotiations naturally follow.

Budget discussions can lead to agreement of budgets in full, allowing for the costs management hearing to be vacated altogether. However, very often only certain phases are agreed, narrowing the costs issues in contention at CMC. Whether agreed in full or in part, investing time in negotiations and strategy at this point will lead to a more beneficial outcome overall.

In addition to preparing an ordered schedule of incurred costs or a composite summary, the next step is to decide who should attend the CMC to ensure you are well positioned from a costs perspective going forward.

Precedent Rs, negotiations, breakdowns, summaries and attendance at CMC all have the potential to be captured in the 2% provision for budget process and be recovered from your opponent if successful.

The Costs Management Conference

When a great deal rests on the result of the CMC a meticulously prepared advocate should not be underestimated. A sound understanding of the case to date is also key when deciding who is best suited to make those all-important representations in respect of the budgets.

Our costs management team are well versed in CMCs the depth and breadth of the country and have extensive experience in obtaining the most advantageous scenario of approved budgets possible.  If costs specialist input is required, this is something we can provide. 

Monitoring Budgets and Avoiding Shortfall

Regular monitoring of budgeted costs not only highlights any requirement for budget revision but also provides opportunities for agreement to be reached with your clients in relation to overspend before it occurs. It is also worth noting that utilising phase, task and activity codes on your time recording system will improve efficiency in this task. It can also lead to effective legal project management of cases, which will be covered in another of these blogs.

Budget monitoring is now mandatory pursuant to CPR 3.15A and is a service offered by Clarion. As long as the 2% budget and cost management caps have not been exceeded this work can also be recovered from your opponent if you are successful. In an era where solicitor-own client costs disputes are rising, it is more important than ever to keep track of expenditure in costs managed cases.

Fixed Recoverable Costs – 9 months away?

Andrew McAulayLeave a comment

At the Civil Procedure Rules Committee meeting on 13 May 2022, it was confirmed that the extension of fixed recoverable costs (FRC) is planned for April 2023. Please follow this link for a summary of the meeting which provides updates on other topics as well as FRC.  

FRC for the whole of the fast track and ‘lower reaches’ of the multi-track were first proposed by Lord Woolf during the last century! No progress was made and the topic went stale. Lord Justice Jackson raised FRC in his reports ahead of the LASPO reforms in 2013. Since 2013, progress has been delayed due to Brexit and COVID-19, but the government are now firmly focused on ensuring that the extension of FRC is rolled out. I recently spoke to Dominic Regan who confirmed that he thinks implementation will be April 2023, whereas I am of the view that it will be October 2023.

Regardless of the implementation date, it is important that all law firms who undertake contentious work (with damages under £100,000) start to prepare for implementation. Fees recovered inter partes will be very different, here is an example:

  • Band 2 case under the expanded fast track
  • Pleaded value of £50k but settles for £25k
  • Settles at Stage 5 – Witness Statements and Experts Reports
  • No JSM or Mediation
  • L3 firm instructed (12.5% uplift)
  • Fee would be £9,500 plus 16% of damages (£4,000) plus 12.5%
  • Total = £15,187.50 plus any disbursements and VAT

The fee of £15,187.50 allows circa. 82 hours at £185 per hour (Grade C SCCO GHR for an L3 firm). Remember, the £15,187.50 fee is for the lawyer and Counsel except where Counsel are instructed using one of the ‘bolt-on’ fees. The ‘bolt-on’ fees are not factored into the calculation, but if they were then they would allow no more than £3,250 for external Counsel drafting of statement of case and for a written opinion and/or advising in conference. I suspect £15,187.50 represents grim reading for most litigators and is significantly lower than a litigator would expect to recover inter partes at present for a case with the above assumptions.

The extension of FRC will bring significant change to inter partes costs recovery and create further pressure on solicitor/own client relationships. However, FRC will create opportunities for many law firms but those firms will need to rely on increased economies of scale. Efficiency, efficiency and guess what? Efficiency will be key! The Costs and Litigation Funding team at Clarion has followed the topic of FRC extensively since 2013 and can provide training on the reforms for law firms.

Please do not hesitate to contact Andrew McAulay at andrew.mcaulay@clarionsolicitors.com or on 077645 01252 for further information or Rob Patterson at Robert.Patterson@clarionsolicitors.com or on 07961 875496.

Statements of Costs for Summary Assessment – Recent Developments

Bethany CollingsLeave a comment

Today, I presented at our annual commercial litigation webinar on the topic of Statements of Costs for Summary Assessment, where I covered the following:

  1. What is a summary assessment?;
  1. A review of the rules and practice direction;
  1. Recent case law and practical points; and
  1. What’s new?

Statements of Costs for Summary Assessment have been a somewhat ‘dry’ area of costs law for a long period of time, but over the last few years there has been a lot of activity and an increase in reported cases concerning breaches of CPR 44 CPD 9.5.  The Court has a fairly wide discretion when faced with such breaches by virtue of CPR 44 CPD 9.6 which states:

‘The failure by a party, without reasonable excuse, to comply with paragraph 9.5 will be taken into account by the court in deciding what order to make about the costs of the claim, hearing or application, and about the costs of any further hearing or detailed assessment that may be necessary as a result of that failure.’

The court should also apply the case of MacDonald v Taree Holdings [2001] 1 Costs L.R. 147 when considering imposing its power under CPR 44 CPD 9.6. The test set out in this case is:

“What, if any, prejudice has that failure to comply caused to the other party? If no prejudice, then the court should go on and assess the costs in the normal way. If satisfied it has caused prejudice, the next question is: how should that prejudice be best dealt with.”

The case law that I covered in the presentation was:

1. Kuznetsov v London Borough of Camden [2019] EWHC 3910 (Admin)

2. Mahandru v Nielson [2021] EWHC 2297 (QB)

3. Changing Climates Ltd v Warmaway Limited [2021] EWHC 3117 (TCC)

4. Vine v Belfield [2021] EWHC 3068 (QB)

The above cases are all examples of where the Courts were faced with breaches of CPR 44 CPD 9.5 and they all reached different outcomes.

If you have any questions on Statements of Costs for Summary Assessment or require assistance with the preparation of a Statement of Costs or help with challenging a Statement of Costs ahead of a hearing, then please do contact me at andrew.mcaulay@clarionsolicitors.com or on 07764501252. We also offer in person or remote/video training on this area of costs law.