Tag: costs

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

Ellena HunterLeave a comment

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

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

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

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

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

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

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

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

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

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

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

Ellena HunterLeave a comment

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

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

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

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

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

Proportionality

Tanya ForanLeave a comment

The SCCO now insist on the inclusion of the details of P’s estate in respect of COP Bills sent for assessment where this information is not readily available within the Bill narrative. This is to ensure that P is not below the hardship threshold or that the Bill drawn up will not take P into hardship and to ensure proportionality in respect of the size of P’s estate and the costs being claimed.

Proportionality concerning the assessment of costs is covered under Part 44.3(5) of the Civil Procedure Rules, which states that costs incurred are proportionate if they bear a relationship to:

  • The sums in issue in the proceedings;
  • The value of any non-monetary relief in issue in the proceedings;
  • The complexity of the litigation;
  • Any additional work generated by the conduct of the paying party;
  • Any wider factors involved in the proceedings, such as reputation of public importance; and
  • Any additional work undertaken or expense incurred due to the vulnerability of a party or any witness.

N.B Each factor should be given equal weighting BUT in practice there is a tendency to give superior weighting to value.

Further under Part 44.4 (1)(a)(i) the Court will have regard to all circumstances in deciding whether costs were proportionately and reasonably incurred or proportionate and reasonable in amount when assessing costs on the standard basis. The Court will also have regard to the amount or value of any money or property involved.

In a recent matter submitted to the SCCO a Costs Officer reduced the profit costs in a Bill of Costs by over 25% on the basis that the costs claimed were disproportionate to the size of P’s estate. It is therefore important to keep proportionality in mind at all times, particularly when submitting Bills for assessment.

The Court of Protection Rules 2007 (Overriding Objective) states that the Court will “deal with the case in ways which are proportionate to the nature, importance and complexity of the issues.”

As set out above there is a tendency by the Court to give superior weighting to value. It is important to consider the following factors:-

  • Settlement awards
  • LA funding
  • Periodic payments
  • Business interests
  • Ongoing litigation
  • Money Trusts
  • Liquid assets
  • Investments
  • Property

The conduct of P or their family may have caused additional work by the Deputy. If this is the case details of this should be included within the Bill narrative. The likely issues that may arise include, extended family involvement, a complex care dynamic, difficult parents of P, frequent requests for funds and a directly employed care team.

Complexity is also a major factor and should also be taken in account. Often the Deputy will need to take the following matters into account and substantial work may be completed in relation to the following areas:-

  1. Complex investments
  2. Extraordinary applications
  3. Business interests
  4. International elements
  5. Money held in Trusts
  6. Specialist care needs
  7. DOLS

Following the Jackson Reforms there is more weight on proportionality, and it is always worthwhile remembering that the burden of proof is on the party seeking costs to resolve any doubt which it may have as to whether costs were reasonable and proportionately incurred or were reasonable and proportionate in amount in favour of the paying party.

Tanya Foran is an Associate in the Costs and Litigation Funding Department at Clarion Solicitors. You can contact Tanya by email at Tanya.Foran@clarionsolicitors.com or the team at costssupport@clarionsolicitors.com.

How to Serve Legal Documents by Email

Joanne ChaseLeave a comment

The court has warned litigators that sending a document to multiple email addresses does not constitute good service, even where the party receiving the documents has agreed to it.

The Rules

Documents may be served by email where the receiving party has given prior agreement in writing to the party serving that they are willing to accept service by email, and provided the e-mail address (CPR PD 4.1(1)). The requirements of PD 4.1(1) will be deemed to be satisfied if the email address:-

  • Is provided on the solicitor’s writing paper and states that it may be used for service; or
  • Is set out on a statement of case or a response to a claim filed with the court.

Multiple Email Addresses

In Tax Returned Ltd & Ors, R (On the Application Of) v Commissioners for His Majesty’s Revenue and Customs [2022] EWHC 2515 (Admin) the Claimant purported to serve a Claim Form by email. The Defendant had provided two email addresses upon which documents should be served. The Court concluded that the meaning of the letter giving permission to serve by email did not give the Claimant a choice to serve on either address; it required documents to be served on both.

The judge identified that CPR 4.1 refers to “email address” in the singular and that interpreting it in the way the Claimant sought would require inserting significant words into the rule.

Plainly the situation would become absurd if parties could submit multiple email addresses to which documents were to be sent before good service had been effected.

Para 74

The Court went on to find that the consequence of a party failing to provide a single email address is that 4.1 has not been complied with and service cannot take place by email.

Litigators should ensure that they only provide one email address for service. If another party provides multiple email addresses for service a request for a single address for service should be sent, failing which service should be effected by other means.

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

High Court gives guidance on delegation and recovery of costs

Joanne ChaseLeave a comment

In Rushbrooke UK Ltd -v- 4 Designs Concept Ltd [2022] EWHC 1416 (Ch) the Court gave guidance in relation to the principle of delegation when considering the reasonableness of costs. Where there has been insufficient delegation, it is likely the court will find costs are unreasonable. The key findings are at paragraph 14.

The Judgment

The starting point is that solicitors should delegate work:

I am unhappy with the notion that everything here has been done by a single Grade A fee-earner. One of the important skills of a solicitor is to know how to delegate.

Drawing on his 30 years’ experience in practice HHJ Paul Matthews went on to say:

In my experience as a commercial litigation solicitor, there were no cases in which no work could have been delegated.

In his judgment, whether or not there was a junior fee earner to delegate the was not relevant:

Sometimes it is said that, well, there was no one else to delegate to… the answer to that plea is of course that, as between himself and his solicitor the client is quite entitled to insist on a grade A fee earner doing everything. On the other hand, they are not entitled to require the opponent to pay for it. The question is whether the costs are reasonably incurred and reasonable in amount. Reasonableness takes into account of potential delegation.

In relation to the burden of proof the judge held:

It is not for the paying party to have to identify work which could have been done by a more junior fee earner.

Summary

Delegation should be the rule not the exception. The receiving party will have to justify a decision not to delegate. The test of whether an item could have been delegated is objective; if it was suitable for delegation then it should be allowed at a lower rate even if there was no fee earner to delegate to.

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

Apply for Fee Remission or pay the price

Joanne Chase1 Comment

In Gibbs v King’s College NHS Foundation Trust [2021] EWHC B24 (Costs), it was held that a party which failed to apply for fee remission (of court fees) where they would have been eligible to do so may not recover those fees from their opponent on assessment of costs. This reverses the position in Cook -v- Malcolm Nicholls Ltd (Coventry County Court , 11 April 2019) and Ivanov -v- Lubble (Central London County Court, 17 January 2020) in which it had been held that as a matter of public policy a decision not to rely on the public purse was not unreasonable.

Solicitors should ensure that they investigate their client’s eligibility for fee remission and ensure that they have evidence to support any claim that their client is not eligible. It may be prudent to complete and submit a request for remission in all cases (even where it is believed the client is ineligible) as confirmation from the court of ineligibility would be powerful evidence upon assessment. It would also be sensible to implement procedures for monitoring and updating the client’s eligibility. A policy to send a financial information form to the client whenever a court fee is payable would minimise the risk of non-recovery.

Parties may apply for fee remission after the court fee is incurred however time limits to do so apply. Practitioners should therefore check historic cases and apply for fee remission retrospectively where necessary and possible.

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

Legal costs: Procedural Errors and Delay

Andrew McAulayLeave a comment

Andrew McAulay and Dominic Regan consider some recent cases and issues which arise from procedural defects and delay. Cases discussed in this video are:

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

The Process of a Request for Reassessment

Stephanie KayeLeave a comment

Unlike any other area of law, there is a process regarding Court of Protection assessments that is not in any written case or law, however a spoken arrangement passed down by Costs Judges in order to save judicial time – the Request for Reassessment.

What is it?

Once a Court of Protection Bill of Costs has been assessed at the SCCO, there may be various reductions made that you would not agree with, whether that be a reduction to your hourly rate, time spent liaising with P that was deemed ‘too excessive’ without any reference to case law or document reviews that were ‘unnecessary’. There is a chance to appeal this with the correct justification, prior to arranging a hearing.

It came about following a review of the appeal process by Master Haworth, as only oral hearings, which are expensive and time consuming were used for appealing amounts of time which did not justify the use of the process. Often the cost and time spent in an appeal outweighed any proportionate benefit.

Upon reviewing the assessment, if you are unhappy with it, you can lodge a request for reassessment with the SCCO.

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 who undertook the initial assessment for reconsideration in respect of the issues requiring reconsideration.
  • 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 and they need to have all of the facts to make an informed decision. It is not worthwhile to simply disagree with their approach – you need to explain why you disagree with particular reductions and on what grounds they should increase the amount allowed.
  • The assessment will be reconsidered on paper and returned to you with additional comments following the Costs Officer’s reassessment.
  • 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.

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.

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.

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Persimmon Homes Ltd v Osborne Clark LLP – A warning to act promptly when revising costs budgets

Daniel MurrayLeave a comment

The High Court has delivered the most significant judgment since the implementation of the use Precedent T for budget revisions in October 2020, and the provisions of CPR 3.15A.

The case

In Persimmon Homes Ltd and Anor v Osborne Clarke LLP and Anor [2021] EWHC 831 (Ch), the developer Claimant’s brought an action for negligence arising from the drafting of agreements and ancillary advice relating to the development of land. The Defendants had issued a claim for unpaid fees against the Claimant and the matters were being heard together.

A Costs Management Order had been made in December 2019, with the Claimant’s budget approved in the sum of £1.445m and was proceeding to a third CCMC in January 2021. Prior to the third CMC, an application was made to vary the approved costs budget by the Claimant on 21st December 2020 to increase their costs by circa £1.339m. The Precedent T had initially been submitted to the Defendant on 3rd December 2020.

The application was made on the basis that there had been 3 significant developments in the litigation, which were not anticipated when the case was initially cost managed. The costs of preparing a Request for Further Information and considering responses, costs of two additional CMC’s and the biggest issue, in relation to disclosure was that the budgets were based on model A & B in the disclosure pilot scheme, with model C eventually being used.

The framework for an application to vary an approved costs budget is outlined within CPR 3.15 A as many practitioners may be aware. Within this framework is an obligation on the parties, using the form prescribed by PD 3 E (Precedent T) to:

  • Revise its budgeted costs upwards or downwards if significant developments in the litigation
  • submit any revised budget promptly to the other party for agreement.
  • Confine the particulars to the additional costs occasioned by the significant development.
  •  submit the particulars of variation promptly to the court, together with the last approved or agreed budget, and with an explanation of the points of difference if they have not been agreed.

The Court may then approve, vary or disallow the proposed variations, having regard to any significant developments, or may list a further costs management hearing. Where an order is made by the Court, it may vary the budget for costs related to that variation which have been incurred prior to the order for variation but after the costs management order.

Master Kaye identified that to successfully persuade the Court to approve any variation, the threshold of a variation arising from a ‘significant development’ and being submitted promptly must be satisfied before any discretion as to the scope of the variation itself can be considered. The application to vary therefore involves a two-stage process. 

In relation to the first alleged significant development, Master Kaye noted that the request for variation had been submitted ten months after the request was made and four months after all costs in relation to it had been incurred. The Claimant’s submissions that an application to vary can be made after all costs were incurred were rejected, and it determined that whilst “there may be some incurred costs at the point at which an application is made, in respect of which the court may be persuaded to exercise discretion.…. CPR 3.15A (6) was never intended to and is not open season to come back and vary a costs budget after the event.” The application was therefore deemed too late.

Similar observations were also made in relation to the sought variation in relation to the costs of additional CMC’s. With Master Kaye taking issues with the fact that whilst the further hearings were not contemplated at the time the initial hearing took place, the application to vary did not come until 4 months after the order fixing the hearing was made. It was commented that “the absence of promptness in making the applications not only affects whether the application to vary meets the threshold test but has consequences from a practical perspective…… it may have been possible, had an application been made earlier in the year, to identify in advance of incurring all the costs factors which might have persuaded the judge prospectively that they amounted to a significant development that warranted a revision to the last approved costs budget. Prospectively it may then have been possible to persuade a judge that there were additional to be incurred costs said to arise from the RFI/RRFI and CMCs before the costs were incurred thus enabling the court to prospectively manage and control the costs. The very purpose of the variation process.”

The third, and biggest limb of the proposed variation in relation to disclosure was also rejected by Master Kaye. Issue was taken again with the timing of the application in view of the fact the Claimants were aware of the changes in respect of disclosure at earlier CMC’s yet failed to react to the situation. The application was made over 12 months following the switch to model C and therefore was not prompt. Stressing again the need to act prospectively, not retrospectively, Master Kaye confirmed that “Cost budgeting is about setting prospective costs and CPR3.15A is to enable the court to approach the question of variations and amendments in a practical and purposive way not to oust the role of the costs judge”.

Conclusion

The case highlights the extent of the obligations on the parties brought about by CPR 3.15, to revise budgets upwards or downwards throughout the litigation. Throughout the judgement Master Kaye highlighted that the additional costs will be determined by the costs judge at assessment, however the success of such submissions considering this judgment will be interesting to see. To protect their position, parties must assess the content of their approved budgets, and in particular the assumptions which were provided with them at the time of costs management and ensure that any deviations result in the preparation of a Precedent T, at the same time work is being carried out to deal with such deviations. This is the best way to ensure you protect your costs position.

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

Avoiding Challenges to your Costs III: Talking about Money

Joanne Chase3 Comments

Discussing fees with a client is often one of the most stressful parts of a solicitor’s job. Social taboos around talking about money run deep; studies have consistently shown that personal finances rank high on the list of topics people find it hardest to talk about. Yet they have also shown links between reluctance to talk about money and the risk of falling into financial hardship. Getting these conversations right can protect you from challenges, and protects your client from falling into financial difficulty.

This is the third blog in a series covering various aspects of solicitor / own client relationships. You can find the other blogs here:-

Avoiding Challenges to your Costs I: Invoicing Clients

Avoiding Challenges to your Costs II: What is an Invoice

Avoiding Challenges to your Costs IV: Time Recording

When it comes to money, being proactive is key. Providing an early and accurate estimate of costs will enable your client to plan ahead and avoid difficult conversations later. You should also keep your client informed as the case progresses, and schedule regular updates to ensure that you are on track and the client is informed. If things change, update the client as soon as possible and explain what this means in relation to costs.

An accurate estimate helps your client understand what costs you are likely to incur and also allows them to plan the litigation. A client is far less likely to dispute your fees if they had a good idea of what it would cost in advance. And if they do dispute your fee, you can refer to the estimate and point out that they knew the cost when they authorised the work. If you have exceeded the estimate, you will be able to explain why the work done went beyond its scope.

Preparing an Estimate

Preparing an estimate can seem daunting, but following these simple rules will make estimates easy:-

  • Estimates should not be generic
  • Plan the case and how much time each element will take, e.g:-
Pre-Action
Review client documents4 hours£400
Letter of Claim2 hours£200
Advice and correspondence with client6 hours£600
  • Be realistic about the time you will spend. We tend to underestimate how long things will take. Bear that in mind.
  • Do not overthink it. Include anything you think is likely to happen, but do not try to estimate for every eventuality.
  • Factor in disbursements, such as court fees, counsel’s fees and experts’ fees

Communicating with the Client

One fear lawyers have is that they will “scare off” clients if the estimate is too high. However, most clients will appreciate transparency on fees. And if they are unwilling or unable to pay, it is better to know before you do the work. There is no benefit to you in obtaining work which is not profitable.

Once you have provided the estimate to the client, make sure that you give regular fee updates. For example, using the example estimate above when you send the letter of claim to your client you might include a sentence saying “I confirm that our unbilled fees to date total £xxx” and either confirm that this is below your estimate, or explain why it is above your estimate. If your client later questions your fees you will be able to refer them to your letter where you told them the level of your fees.

Conclusion

By preparing an estimate and updating your client about fees you avoid difficult conversations about fees at the end of the matter. If your client later disputes your fees you are in a strong position to resist any reductions because you can argue that they continued to instruct you in full knowledge of what the fees were. An estimate is a powerful tool in ensuring recovery of your own fees, and also in enabling your client to manage their finances.

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