Tag: costs lawyers

Guideline Hourly Rates are the starting point not the finishing point

Robert PattersonLeave a comment

Arguments concerning solicitors hourly rates have always been a central issue in the assessment of costs, regardless of whether there is a detailed assessment or a summary assessment. Those arguments can be particularly important in cases where the rates claimed exceed the guideline hourly rates. Indeed, those who represent paying parties will deploy numerous arguments to achieve reductions, but one argument that is becoming increasingly common is the suggestion that an hourly rate in excess of guidelines should not be awarded unless a ‘clear and compelling justification’ has been given.

This particular line of argument derives from the case of Samsung Electronics Co Ltd & Ors v LG Display Co Ltd & Anor [2022] EWCA Civ 466. In that case the court was faced with a summary assessment involving hourly rates ranging from £801.40 to £1,131.75 for a Grade A and £443.27 to £704 per hour for a Grade C. The justification provided for those rates was that it is almost always the case the rates will exceed guidelines in competition litigation. Rates in excess of guidelines were not allowed and Males, LJ that:

“[…] If a rate in excess of the guideline rate is to be charged to the paying party, a clear and compelling justification must be provided. It is not enough to say that the case is a commercial case, or a competition case, or that it has an international element, unless there is something about these factors in the case in question which justifies exceeding the guideline rate.”

Males LJ made a similar finding in Athena Capital Fund SICAV-FIS SCA & Ors v Secretariat of State for the Holy See [2022] EWCA Civ 1061 when faced with rates well in excess of the guidelines.

Although the above decisions are frequently relied on, the point made by Males LJ may not be applicable in all cases. This is because in both Samsung and Athena, the court was dealing with a summary assessment rather than a detailed assessment and the two types of assessment are conceptually different. That difference was recently explained Master Rowley in Various Claimants v News Group Newspapers Ltd [2023] EWHC 827 (SCCO):

“70. I also accept the argument that the GHR may be a useful starting point in a detailed assessment as well as in a summary assessment. I do not, however, consider that the guidance given by Males LJ regarding the need for a “clear and compelling justification” for exceeding the GHR extends with any great force to this particular situation.

71. The GHR are provided predominantly to assist judges who do not specialise in costs cases to deal with a summary assessment of costs when faced with the successful party’s summary assessment schedule and competing arguments from the advocates.

72. The relevance to the GHR being a starting point in detailed assessments is no more than a reflection of the scarcity of any other starting point. Expense of time calculations or other potential starting points, as is demonstrated here, are invariably absent. But a starting point by its very name does not suggest it is the finishing point and that is particularly so where the court has the opportunity for the parties to address it in detail in respect of the CPR 44.4 factors.”

The Master went on to allow hourly rates in excess of guidelines. Accordingly, the decision in Samsung does not represent an additional test for receiving parties to overcome and detailed submissions in respect of the eight pillars of wisdom in CPR rule 44.4 are likely to be more effective in securing hourly rates in excess of guidelines.

Robert Patterson is a Senior Associate in Clarion’s Costs and Litigation Funding Team, and can be contacted at robert.patterson@clarionsolicitors.com.

Estimated time or pure imagination?

Helen ApplebyLeave a comment

In Ikin -v- Shawbrook Bank Limited (2023) the judgment of Senior Costs Judge Gordon Saker looks at the issues surrounding estimated time and contains many points for litigators to take on board. Remember, the responsibility lies not just with the person preparing the Bill but with the Solicitor certifying the accuracy of the Bill.

Brief background

This case involved several Claimants, who brought claims of misrepresentation by finance companies regarding the installation of solar panel systems. 9 Claimants were represented by the same Solicitor. One claim for costs was assessed (at nil) by Regional Costs Judge Baldwin, “The Kinder Claim”. The remaining 8 claims were transferred to the SCCO, to assess counsel’s fees, the expert’s fees and profit costs.

In 2 of the bills (Ikin and Walsh), there were identical generic time entries claimed (18 in total). They were identical in both wording and time claimed.

Part 18 Requests were served, requesting clarification as to whether any time within the Bills was estimated. The response was bland and the Claimants were asked to provide a schedule of estimated time – this was never produced.

On Assessment

The first Bill to be assessed, Scott, was found to be riddled with issues. No time recording ledger was provided and it was evident that no time had been recorded within the substantive action. In truth, almost all the profit costs claimed had been estimated by the Costs Draftsman, some of which were not supported by the file of papers.

The Judge requested an explanation from the Claimants’ Solicitor. A Witness Statement from the conducting Solicitor confirmed she “had no experience of dealing with costs in this type of claim and so had instructed KE Costs (“KEC”), a firm of costs lawyers, “who indicated they had experience of dealing with similar costs arising out of solar claims in the North East”. Miss Wall said that she had assumed “that the descriptions given [of the work recorded in the bill] were fair representations of the work that had been done”. When checking the bill before signing it, she made sure that all the disbursements had been included and “that each stage of the case has been accurately identified”. However she did “not sit there and look at every single line individually and check the accuracy of every single line, because that just seems disproportionate”. She had relied on the expertise of the people she was instructing.

Amended Bills were lodged with the Court where by the descriptions to the time had been updated, however, the sums and time claimed remained unchanged. The amended Bill in Ikin was claimed at £29,774.90 and assessed at £9,250.00.

Ruling and Conduct point

The judge considered the issues relating to the Claimants’ Solicitor’s conduct.  In particular the importance of the Solicitor’s signature on a bill of costs. In this case, there was a clear misconduct point, the Judge found the bills were not accurate and claimed costs the Claimants would not have been liable to pay to Parkerwall (their instructed Solicitor). The Judge imposed two sanctions. The assessed costs were reduced by 60% and the Claimant’s Solicitor was ordered to pay 75% of the Defendant’s costs of the assessment on the Indemnity Basis.

Civil Procedure Rules

“This is an appropriate case in which to disallow costs under r.44.11(2)(a). The Claimants’ legal representatives have claimed costs which their clients were not entitled and have attempted to mislead the Court. In Gempride Ltd -v- Bamrah (2018), the Court of Appeal substituted an order that one half of the profit costs otherwise payable under Part 1 of the Claimant’s bill should be disallowed. That followed findings that the Claimant Solicitor had certified a bill which claimed an hourly rate in excess of the rate that she was obliged to pay and had wrongly stated in her replies that BTE insurance was not available to her. There was no finding of dishonesty.

It seems to me that the present cases are comparable. Eight bills have either been reduced significantly or have been agreed in significantly reduced amounts as a result of the misleading entries and the overestimation of time. As the parties have agreed global figures for profit costs and disbursements in the six unassessed cases, rather than disallow one half of the profit costs I would disallow a smaller proportion of the total figures.”

Costs follow the event

The Judge’s attention then turned to the costs of the detailed assessment. “Clearly this is a case where the court should make a different order to the usual order that the paying party pays the costs of the receiving party (CPR 47.20(1)). The conduct of the receiving parties’ solicitors reasonably required investigation. That led to a significant lengthening of the detailed assessment hearings. But for that investigation, the hearings might have been avoided completely. The conduct has been found to be wanting, and the bills have been reduced substantially.

Without an order under r.44.11(2)(b), the appropriate order under r.47.20 would have been that the Claimants should pay at least a proportion of the Defendants’ costs of the detailed assessment proceedings. As between the Claimants and their solicitors, the latter should bear those costs.

Some time was spent investigating the fees of counsel and the experts, which, in the event, did not lead to significant reductions. Whatever apparent irregularities there were in billing, the work had been done and the Claimants were entitled to recover the costs of that work. The Claimants should be entitled to the costs of those issues, but they were a relatively small part of the whole. The appropriate order under r.47.20 would have been that the Claimants should pay 75 per cent of the Defendants’ costs.

The fault, however lies, at the door of the Claimants’ Solicitors, rather than the Claimants, and so the appropriate order is that the Claimants’ Solicitor should pay those costs under r.44.11(2)(b). On any view the conduct of the Claimants’ Solicitor has taken these cases “out of the norm” and it is appropriate that the costs should be assessed on the indemnity basis.”

Summary

This brings home the importance of accurate time recording and certification by Solicitors. It remains the Solicitors responsibility to ensure that the certificate of accuracy guarantees the accuracy of the costs claimed.

Helen Appleby is an Associate in Clarion’s Costs and Litigation Funding Team. You can contact the team at civilandcommercialcosts@clarionsolicitors.com

Update on implementation of the extension to fixed recoverable costs

Robert PattersonLeave a comment

This third instalment of Clarion’s mini-series on preparing for the forthcoming fixed costs reforms, looks at recently announced changes following the Civil Procedure Rule Committee meeting on 3 March 2023.

It was intended that the new rules would take effect in October 2022, however implementation was delayed until April 2023. It was then announced in November 2022 that there would be a further delay until October 2023 due to the complexity of the reforms. It is still intended that the new rules will take effect from October 2023, however there will be changes to the scheme when it comes into effect.

Latest developments

The most important development is that there will be a general transitional provision whereby the new rules will apply to claims where proceedings are issued on or after 1 October 2023, save where the claim is for personal injury (including disease claims). In personal injury claims, the new rules will apply where the cause of action accrues on or after 1 October 2023 and they will apply to  disease claims where the letter of claim has not been sent to the Defendant before 1 October 2023.

A proposed new practice direction has been drafted setting out the rates for the fast track, intermediate track, and noise induced hearing loss claims. Previous versions of the rates were based on an initial report prepared by Lord Justice Jackson in 2017, and it has now been confirmed the rates will be uprated for inflation using the January 2023 Services Producer Price Index. This is an interesting development, as it was not expected that the rates would be uprated.

Other changes being considered include amended provisions in respect of disclosure to achieve a consistent approach between the fast track and intermediate track.

Next steps

Further drafting work will continue and it is anticipated that the final draft amendments will be presented to the committee ahead of the next meeting on 31 March 2023. This mini-series will be updated as and when further information becomes available.

Robert Patterson is a Senior Associate in Clarion’s Costs and Litigation Funding team. You can contact the team at CivlandCommercialCosts@clarionsolicitors.com

Important Changes to the Qualified One Way Costs Shifting (QOCS) Rules

Joanne ChaseLeave a comment

Introduction

Qualified One-Way Cost Shifting (QOCS) is a legal rule in the UK that was introduced in 2013 to limit the liability of a claimant for the defendant’s costs in personal injury and related claims.

For the time being claimants can settle claims in a number of ways before trial and still be able to rely upon QOCS protections.

Key judgments

Cartwright v Venduct Engineering Ltd [2018] EWCA Civ 1654

Defendants could not enforce costs against damages recovered via settlement where deemed costs orders (Tomlin Orders and accepted Part 36 offers) are relied upon. They are not orders of the court for the purposes of QOCS. If it had been the intention for rule 44.14 to cover settlements of whatever kind, different words and greater guidance would have been required.

Ho v Adelekun [2021] UKSC 43

The Supreme Court held that setting off costs against costs is a form of enforcement, and therefore covered by the QOCS provisions just as a set off between costs against damages would be. 

Further judgments at the end of 2022 reinforced these appellate decisions where lacunae were identified and clarity provided:

Chappell v Mrozek [2022] EWHC 3147 (KB)

Master Stevens rejected the argument that a defendant’s entitlement to costs, arising from late acceptance of a Part 36 offer, could be enforced from a claimant’s damages.

University Hospitals of Derby & Burton NHS Foundation Trust v Harrison [2022] EWCA Civ 1660

The Court of Appeal rejected the defendant’s argument that QOCS protection was lost when the court was called upon to make an order under r.36.22(9) providing permission to accept an offer.

April 2023 Amendments to CPR

In May 2022 the Civil Procedure Rule Committee recommended changes to QOCS following the Supreme Court’s comments in Ho .

On 2nd February 2023 The Civil Procedure Amendment Rules 2023 were laid before Parliament with the stated intention that they should come into force on 6th April 2023, amending the Civil Procedure Rules 1998 from that date.

Among many other changes, rule 24 of the Amendment Rules amends CPR 44.14 so that deemed orders can be enforced, and offset against an aggregate of damages, interest and costs. The proposed changes to rule 44.14 are underlined below:

(1) Subject to rules 44.15 and 44.16, orders for costs made against a claimant may be enforced without the permission of the court but only to the extent that the aggregate amount in money terms of such orders does not exceed the aggregate amount in money terms of any orders for damages, or agreements to pay or settle a claim for, damages, costs and interest made in favour of the claimant.

(2) For the purposes of this Section, orders for costs include orders for costs deemed to have been made (either against the claimant or in favour of the claimant) as set out in rule 44.9.

(3) Orders for costs made against a claimant may only be enforced after the proceedings have been concluded and the costs have been assessed or agreed.

(4) Where enforcement is permitted against any order for costs made in favour of the claimant, rule 44.12 applies.

(5) An order for costs which is enforced only to the extent permitted by paragraph (1) shall not be treated as an unsatisfied or outstanding judgment for the purposes of any court record.

Key Points

Four key points arise from these amendments:

  1. The rule at new CPR 44.14(1) will allow a defendant to enforce their costs entitlement up to the extent of any aggregate settlement, to include all damages, costs and interest made in favour of the claimant.
  2. Cartwright has been explicitly reversed: the rule at new CPR 44.14(2) will allow a defendant to enforce their costs against any type of settlement, including deemed costs orders such as Part 36 and Tomlin Orders.
  3. Ho has been explicitly reversed: the rule at new CPR 44.14(4) will allow set-off of the defendant’s costs against the claimant’s costs.
  4. Rule 1(3) of the Amendment Rules confirms that the amendments set out in rule 24 are subject to transitional provisions. This means that they only apply to claims where proceedings are issued (not served) on or after the 6 April 2023.

Outcome

The transitional provisions are helpful in providing clarity to the position as, in my experience, defendants have not settled costs on the basis that the changes could be retrospective.

In the short term, our advice to claimant firms would be to issue any claim before 6 April 2023, where possible, to ensure that your client retains the more favourable QOCS rules.

Any accusations by defendants that the issue of these claims was premature should be simply rebutted by the argument that it was reasonable to take advantage of the transitional provisions, and to do otherwise was not in the claimant’s best interest.

It is very likely that many claimant firms will seek to issue relevant claims before 6 April 2023 to preserve the QOCS protections of the existing regime for those cases. This increase in issued claims over the next 2 months is likely to have a detrimental effect on court capacity and waiting times. Given the existing backlog, this is not inconsequential.

Litigants and litigators on both sides will need to factor in the rule changes when considering case strategy and settlement post April 2023.

Defendants will be motivated to make early Part 36 offers, in some cases before any, or adequate, expert evidence has been obtained. These early offers will need to be given extremely thorough consideration and could result in many claims settling prematurely simply because of the very real concerns of the claimant regarding their potential costs liabilities.

These rule changes may well stimulate claimant lawyers to seek ATE insurance products that insure the claimant’s lawyers’ own fees, to ensure that these are not drained by setoff. The cost of this ATE insurance will not be recoverable.

Longer term, there could be an increase in satellite litigation. This could be prompted by the very different QOCs regimes running in parallel for a period of years, or due to unintended and unforeseen consequences of the changes.

Analysis

QOCS was pivotal to the Jackson reforms of personal injury litigation that took place in 2013. These amendments constitute a significant change to the QOCS rules and reverse one Supreme Court decision and a number of Court of Appeal decisions.

Defendants will claim that the new rules “level the playing field” in personal injury litigation and bring back teeth to defendants’ offers to settle.

It is certainly evident that claimants will have more “skin in the game” moving forward. Claimants will have to consider carefully the costs consequences of any defendant’s offer as the costs protection provided by the current version of the QOCS rules will be lost.

These rule changes have made bringing a claim much more uncertain and will therefore raise further questions around access to justice.

If you have any queries or concerns regarding these changes, please contact us for a more in depth discussion.

Andrew Crisp is a Costs Lawyer in the Costs and Litigation Funding Department at Clarion Solicitors. 

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

Cambridge University Hospitals NHS Foundation Trust & Anor v RD & Ors (2022) EWCOP 47

hawamayetLeave a comment

This case concerns P who had been diagnosed with an Emotionally Unstable Personality Disorder which had resulted in two incidents of self-harm in which the inserting of a tracheostomy tube, led P to attempt to cut her throat. P was given the choice to either keep the tracheostomy tube, reduce and then stop sedation and to undertake training to manage her tracheostomy in the longer term or have the tracheostomy tube removed following which a palliative care plan would be put into effect. A Court of Protection hearing was listed on 12 August 2022.

Background of the case

P has a long history of mental health difficulties and has spent significant periods in psychiatric units since the age of 15. Since 2021 she has had three periods of detention under the Mental Health Act. P has been diagnosed with Emotionally Unstable Personality Disorder, Post Traumatic Stress Disorder and at some points with Psychosis. P has had many incidents of very serious self-harm.

As P had previously tried to remove her tracheostomy tube twice, a decision was to be made as to whether to keep the tracheostomy tube, reduce and then stop sedation and undertake training to manage her tracheostomy in the longer term or have the tracheostomy tube removed following which a palliative care plan would be followed.

Views of P’s Parents and Dr A

When P was calm, she expressed a desire to live and P’s parents explained that this had become a pattern over the years in which P would express her view that she wished for treatment and would then begin self-harming.

P’s doctor (Dr A) explained that P had a psychological need for autonomy and the only realistic hope for P was for her to believe that she was in charge of her own life. Dr A explained that if P believed nobody would intervene to prevent her harming herself, she may not remove the tube. However, this plan could also lead to her death.

Role of the Official Solicitor

An Official Solicitor was enlisted to work on the case because of the difficulties in establishing the degree to which P had capacity and in establishing what her wishes were. The Official Solicitor accepted that the Court should seek to maximise P’s autonomy and that there was little prospect of any long-term recovery from her mental ill-health.

Conclusion

Before a judgement could be made, P sadly passed. However, in the judgment later released, it was stated that it was in P’s best interests, for the care and treatment plan proposed and agreed by all parties to be put in place, accepting that this may lead to her death.

With regards to whether the Court of Protection had jurisdiction on the matter, due to the fact that P lost capacity when she was distressed, the Judge ruled that this was a Court of Protection matter.

The Judge considered the parents views that they believed that the time had come to let P make her own choice which regards to her care. The evidence of Dr A, and P’s parents was that the most important thing for P was a sense of autonomy. This would suggest that continued physical restraint and replacing the tube if she removed it, undermined P’s autonomy and further damaged her mental health. The judge was guided overall by the sense of autonomy for P as restraining her and replacing the tube offered no long-term solution to her physical or mental issues. There was very little, if any, prospect of any long-term improvement to P’s mental health. Therefore, that form of treatment appeared to be futile in anything other than the very short term.

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.

Ho v Adelekun – update

Andrew McAulay2 Comments

The long awaited judgment in Ho v Adelekun [2021] UKSC 43 was handed down in October with the appeal being unanimously allowed.

The judgment clarifies the position in respect of the interplay between CPR 44.12 and CPR 44.14, and the effect of QOCS on a Defendant’s ability to offset an order for their own costs against the Claimant’s costs.

The issue arose from a personal injury claim which settled by way of Part 36 acceptance. A dispute ensued regarding whether fixed costs applied and the Defendant was successful on that point in the Court of Appeal. The Defendant was awarded their costs in the sum of £48,600. The Claimant had recovered damages of £30,000 and fixed costs of £16,700. As QOCS applied, and there was no order for damages, the Defendant could not offset their costs against the Claimant’s damages but argued that they could still offset part of their costs against the Claimant’s costs under CPR 44.12. 

CPR 44.14 states :

44.14 – Effect of qualified one-way costs shifting

(1) Subject to rules 44.15 and 44.16, orders for costs made against a claimant may be enforced without the permission of the court but only to the extent that the aggregate amount in money terms of such orders does not exceed the aggregate amount in money terms of any orders for damages and interest made in favour of the claimant.

(2) Orders for costs made against a claimant may only be enforced after the proceedings have been concluded and the costs have been assessed or agreed.

(3) An order for costs which is enforced only to the extent permitted by paragraph (1) shall not be treated as an unsatisfied or outstanding judgment for the purposes of any court record

The judgment confirms that off-setting under CPR 44.12 constitutes an enforcement for the purpose of CPR 44.14, above. As such, a Defendant’s costs can be set-off against opposing costs orders but only to the extent that those costs do not exceed the amount ordered for the Claimant’s damages and interest (absent any QOCS exceptions such as fundamental dishonesty). In this case, as there was no order for damages, there could be no offset against costs and the Defendant would recover nothing.

The word ‘order’ is key, any other form of settlement will mean that the Defendant cannot recover any of its costs unless an exception applies. A Part 36 acceptance or a Tomlin order where the damages provision is not within the order will not suffice. Similarly, where there is an order for damages but those damages are small, a Defendant’s costs (which may significantly exceed those damages) will be capped at that damages amount, even where the Claimant has recovered some costs.

The judgment has serious implications for Defendants and it was conceded that it may cause results that look ‘counterintuitive and unfair’. At paragraph 9, it was suggested that the issue may need to be reviewed by the Civil Procedure Rules Committee to put right any ambiguities. The minutes of the CPRC November meeting are now available here and confirm that the review is likely to be delayed until after the work on fixed recoverable costs is concluded.

This article originally featured in our November newsletter which can be found here. It has been updated to include the outcome of the recent CPRC meeting.

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

Part 36 Rewards

Dominic ReganLeave a comment

HOCHTIEF V ATKINS ( 2019) EWHC 3028 ( TCC) saw a claimant who bettered their Part 36 quantum offer by just  £4,500 secure  an uplift of £65,000 and interest at 6% above base plus indemnity costs.

JLE V WARRINGTON NHS TRUST (2019) 1WLR 6497  –  On 21 June 2018 the claimant made a Part 36 offer in the sum of £425,000, inclusive of interest, in respect of the Bill of Costs. That offer accordingly expired on Friday 13 July 2018, i.e. the last working day before the hearing commenced.  Master McCloud assessed the bill inclusive of interest in the sum of £431,813.05, i.e. £421,089.16 plus £10,723.89 interest. The claimant therefore beat her Part 36 Offer by just under £7,000.

Had the Court  granted the default Jackson 10% uplift the claimant would receive an additional £43,181-30.

The Master considered this to be unjust given that the offer was made late on and it was only bettered by a slender margin .The Master was plainly troubled by the disparity between the amount by which the offer was beaten (£7,000) and the consequential uplift ( 6 times as much ).

She thus  declined to award the uplift. The claimant successfully appealed to Stewart J who made the award. The defendant ought to have paid up and settled. It only had itself to blame . The offer was plainly good.

In TELEFONICA  V OFFICE FOR COMMUNICATIONS (2020) EWCA Civ 1374 the claimant had bettered its offer by £4.5m or 9% yet received no more interest than would have been payable had it made no offer at all. The Appeal Court endorsed the view of Stewart J in JLE ( above ) that it would be highly unusual for the Court to grant some benefits but to withhold others .This was particularly so on the facts of this £54m case. Indemnity costs and an additional £75,000 “was an almost trivial uplift and any significant enhancement in overall relief would only have been achieved by the award of additional interest on the principal sum “ ( paragraph 42).The Judge was in error by regarding the award of 2 trivial enhancements as justification for not awarding the major enhancement, uplifted interest. The Appeal Court corrected the omission and so Telefonica gained  a useful extra £900,000.

Some Judges at first instance had flirted with the concept of withholding some of the rewards, adopting a pick and mix approach. The Appeal Court made it abundantly clear that the victor  ought to  receive each of the four enhancements pursuant to CPR 36.17(1)(b).There is nothing in the Rule which undermines or lessens entitlement to the others. The rewards are a composite package. All of them  ought to be bestowed .

On a practical note I surmise that Sir Rupert Jackson would agree. An approach which encouraged arguments about dividing up the spoils would be a blatant incentive for the paying party to raise challenges in the hope of shaving something off. Finality and certainty are secured by this approach.

HOCHTIEF was a good offer on quantum. JLE was a good one on costs. These examples demonstrate why it is crucial for a receiving party to make good, early offers to settle. We do !

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

The Modernising of the Lasting Power of Attorney

Ellie Howard-TaylorLeave a comment

The lasting power of attorney (LPA) was introduced in 2007. It was designed to provide more flexibility and greater protections than its predecessor, the enduring power of attorney (EPA). In more recent years, demand for digital services has increased significantly. Digital channels provide many opportunities to improve access and speed of service.

Due to this, the Ministry of Justice and OPG are working together to modernise LPAs.

Their aims of this work are to:

  • increase safeguards, especially for the donor
  • improve the process of making and registering an LPA for donors, attorneys and third parties
  • achieve sustainability for OPG whilst keeping LPAs as affordable as possible for all people in society

Creating a modern LPA service will require changes to the Mental Capacity Act 2005 and the supporting secondary legislation. The Ministry of Justice has launched a consultation and they need public views on the proposals and to collect evidence on how to proceed with the development of solutions.

Submitting your response:

MLPA – Vulnerability Policy Unit 
Family and Criminal Justice Policy Directorate
Ministry of Justice 
Post point 7.25 
7th Floor 
102 Petty France 
London 
SW1H 9AJ

A standard response prepared by Caroline Bielenska can be located at Standard Response Template. The deadline for submissions is the 13 October 2021.

If you have any queries on any of the above, please do not hesitate to contact Ellie Howard Taylor atellie.howard-taylor@clarionsolicitors.com