Tag: CPR

Annual open meeting of the Civil Procedure Rules Committee – 13 May 2022  – Costs update

Andrew McAulay1 Comment

The CPRC annual open meeting took place today via Teams in keeping with the format of the previous two years.

The meeting was opened by the Master of the Rolls, The Rt. Hon. Sir Geoffrey Vos, who spoke about the Civil Justice Committee’s current holistic review of costs as a whole in light of the various radical changes coming forward. The group will look at the recent changes to guideline hourly rates, costs budgeting (which he said remained controversial and needs another look), costs in the pre action space, and upcoming fixed costs changes. It was confirmed that there may be recommendations to the CPRC following the CJC’s report as it is important to look at how these issues interact and to ensure that things are working smoothly.

The open meeting includes time for questions and, perhaps unsurprisingly, there were plenty of costs issues raised, particularly in respect of the upcoming changes to fixed costs. The following costs matters were discussed and the full minutes will likely be published in June:

Fixed Recoverable Costs

There are currently 2 open consultations in respect of QOCS and vulnerability. Comments are due in by 20 June. Thereafter, the rules are scheduled to be approved at or by the CPRC December 2022 meeting, with a view to implementation in April 2023. Additional questions were asked regarding late acceptance of Part 36 offers and whether the new FRC rules would include any penalties. It was confirmed that this was not covered by the consultation.

QOCS/Part 36

A question was asked regarding any proposed changes to the QOCS position where there is late acceptance of a Defendant’s Part 36 offer. It was confirmed that the QOCS review looks at the position arising from Ho v Adelekun only.

Guideline Hourly Rates

Various questions regarding the increased GHRs were raised, including whether this would lead to an increase in the £1,500 cap for Provisional Assessment costs and whether periodic reviews/updates are anticipated to prevent stagnation.  It was confirmed that the CJC’s costs group, led by LJ Birss, is looking at costs as a whole and Guideline Hourly Rates is one of the specific areas that will be considered along with pre action costs, budgeting and fixed costs. They will report soon and invite consultation responses with a final report due in the autumn. That report will not include detail of any proposals but will look at broader principles.

Aldred v Cham

Changes to CPR 45.29(h) were agreed in principle at last year’s open meeting but have not yet been implemented. The detail of that proposal can be found here. It was confirmed that that decision was subject to the wider work of the fixed costs committee on CPR 45 in its entirety. The Aldred point will be dealt with in those changes due in April next year.

Fee Remissions

There are conflicting judgments regarding the recoverability of Court fees between the parties when a party has chosen not to seek a fee remission. The lacuna committee considered the issue but work is currently paused as the MOJ considers the policy implications.

N260

Some minor changes to the N260 were suggested during the consultation on the electronic statement of costs. These fall into two categories, firstly, changes arising from the GHR report involving a certificate to show where the work was carried out and, secondly, minor changes to make the form more user friendly. There is currently no time frame for those changes.

Belsner v Cam Legal Services Ltd

The issues arising from Belsner v Cam will again fall within the CJC costs group’s work on pre action costs.

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

CPRC Costs Sub-Committee provides update on fixed costs

Andrew McAulayLeave a comment

The minutes of the CPRC’s March 2022 meeting were published today and can be found here.

The Costs sub-Committee confirmed that work has commenced in respect of the extended fixed costs regime which was reported last year. The committee’s first meeting was held last month but a precise timetable has yet to be fixed.

The Sub-Committee will also be considering FRC in the context of vulnerable witnesses/parties and there is likely to be a substantive review of the structure of CPR 45.

It was also confirmed that a consultation is anticipated in respect of Qualified One Way Costs Shifting (QOCS).

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

Open meeting of the Civil Procedure Rules Committee 2021 – Costs update

Andrew McAulayLeave a comment

The CPRC annual open meeting took place today via Teams following last year’s successful online meeting. One of the benefits of the past year’s enforced remote working has been the ease of access to forums such as this. Hopefully as we come out of restrictions, we will be able to retain some of the positive changes alongside enjoying some face to face time.

The lessons of the past 14 months were covered by the Master of the Rolls, The Rt. Hon. Sir Geoffrey Vos, who discussed the need to be ambitious in delivering access to justice online and the real opportunities to improve. A lot has been learned in respect of video hearings and PDF bundles which has been great for the system. There will, of course, be instances where in person hearings are preferable but it is likely that shorter hearings will be able to continue to be dealt with remotely. The senior Judiciary will be taking the time to look at the matter carefully.

The following costs matters were discussed and the full minutes will likely be published in June:

Vulnerable parties – Last year changes were made to the overriding objective together with the introduction of PD1A in respect of vulnerable parties. Since then, as anticipated, the Domestic Abuse Act has received royal assent. Sections 64 and 66 require amendments to the CPR to make provision for special measures where a party is a victim or likely victim of domestic abuse. Sections 64 and 66 come into force in April 2022 and the committee has therefore embarked that work. The paper and drafts are due to come before the committee at July meeting.

Aldred -v- Cham [2019] EWCA Civ 1780  – The costs subcommittee has considered the issues rising from Aldred in respect of CPR 45.29I which covers recoverable disbursements in matters which no longer continue under the specified pre-action protocols. The rule includes a wrap up provision allowing for “any other disbursement reasonably incurred due to a particular feature of the dispute”. This provision was not wide enough according to the Court of Appeal and the Supreme Court panel said that the CPRC should consider the issue even though permission to appeal was refused. The key areas of concern were the fee for Counsel’s opinion where the Claimant is a minor (as required by CPR 21) and interpreter costs. In both cases the costs arose due to a characteristic of the Claimant rather than the dispute. The subcommittee’s proposed solution was to add those two specific instances to the list and to expand the wrap up provision to include any other disbursement which is required by the rules to be incurred. This was agreed and further discussion will take place off-line regarding other issues raised such as the costs of telephone conference fees.

Summary Assessment of Costs Pilot (PD51X) – The pilot was introduced in April 2019 to run to April 2021, however, following the pilot it was noted that uptake had been limited. It was therefore decided that the pilot would be extended for another year. It was generally agreed that whether parties are to file the old or new forms, they should be self calculating so that the judge can make changes. In respect of the N260A interim application pilot form, a concern is that a large amount of detail is required for simple hearings lasting maybe half an hour. In respect of the N260B for trial, it was noted that these may be fast track cases which are not budgeted and therefore practitioners are possibly not recording time in a compatible way. Possible fixed costs changes would also have an impact. There will be further informal consultation and a smart survey via the website is being considered to give feedback.

Costs consequences of late acceptance of Part 36 offers – The Lacuna committee has considered the issue arising from various recent cases including Pallett v MGN Ltd [2021] EWHC 76 (Ch) in respect of the tactical late acceptance of Part 36 offers by Defendants in order to avoid the automatic costs entitlement. The issue will be taken up by the costs subcommittee.

Form N170 & Costs – A question was raised regarding Form N170 (Listing questionnaire (Pre-trial checklist)) querying the requirement in section F that the parties must attach ‘an estimate of costs’  as this reference relates to the pre-April 2013 CPR costs regime and the old Practice Direction. The Forms subcommittee will look to amend this.  

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

Civil Procedure (Amendment) Rules 2021 & the 127th Practice Direction Update – Vulnerable Parties

Andrew McAulayLeave a comment

Back in May 2020 I wrote a blog following the annual open meeting of the Civil Procedure Rules Committee which was held via Skype for the first time. One of the costs related matters covered at that meeting was the proposed amendment to the CPR in respect of cases involving vulnerable parties. This followed the publication of recommendations in the Vulnerable Witnesses and Parties within Civil Proceedings report.

Those changes are now to be included in the Civil Procedure (Amendment) Rules 2021 & the 127th Practice Direction Update and will come into force on 6th April 2021.

The amendments include a change to the overriding objective and a new Practice Direction 1A to cover the participation of vulnerable parties or witnesses . The text of the practice direction can be found here at schedule 1.

The CPR 44.3(5) proportionality factors will also be updated to specify that costs incurred will be proportionate if they bear a reasonable relationship to “(f) any additional work undertaken or expense incurred due to the vulnerability of a party or any witness.”.

Helen Spalding is an Associate in the Costs and Litigation Funding Department at Clarion. You can contact her at helen.spalding@clarionsolicitors.com or on 0113 288 5639.

Open Meeting of the Civil Procedure Rules Committee – Costs Update

Andrew McAulay1 Comment

The Civil Procedure Rules Committee held their annual open meeting on 15th May 2020. Given the present circumstances, the meeting was successfully held via Skype.

The previous two meetings covered several costs issues including the establishment of a sub-committee to make recommendations in respect of guideline hourly rates which have not been updated in the last 10 years. The committee is due to make recommendations by the end of this year with an update to the rates to take place thereafter.

The April minutes, which have just been released, confirm a that a sub-committee has also been established to consider costs rates other than guideline hourly rates.

The following costs matters were discussed at the open meeting in May, minutes of which will likely be published in June:

Vulnerable Parties – The sub-committee sought guidance on four points; an amendment to the over-riding objective to cover vulnerable parties, an accompanying PD, an addition to CPR44.3(5) regarding proportionality to specifically include vulnerable parties, and whether to approach the MOJ in respect of amending fixed, scale and capped costs for cases involving vulnerable parties. The committee broadly agreed with the proposals with some caution regarding the overriding objective.

CPR 45.18 – The committee agreed that the deletion of the upper limit of £25,000.00 from tables 6 and 6A would be recommended.

Qader v Esure– Issues had been raised following the amendments to CPR 45 Section IIIA concerning the effect on parties’ settlement tactics in matters likely to be  allocated to the multitrack due to the difference in the level of costs recoverable pre and post allocation. The committee discussed the matter and concluded that no action should be taken.    

QOCS  / Ho v Adelekun – The issue of off-setting Defendant’s costs against Claimant’s costs where damages are insufficient has been referred to the costs sub-committee. The committee will keep a watching brief on the appeal in Ho and consider revision to CPR 44.14 thereafter.

Part 36 acceptance in pre-action matters – Where a Part 36 offer is accepted pre-action there is no deemed costs order (CPR  44.9(2)).  The costs sub-committee will consider whether there is a need to amend CPR 46.14 regarding costs only proceedings to be explicit in respect of Part 36 acceptance on pre-action matters.

Helen Spalding is an Associate in the Costs and Litigation Funding Department at Clarion. You can contact her at helen.spalding@clarionsolicitors.com or on 0113 288 5639.

Costs Budgeting following the 109th CPR update

Anna LockyerLeave a comment

The 109th update has clarified what falls within the “incurred” costs, and made some changes to the guidance regarding which phase costs fall into. Watch the video for more detail and some tips on how to manage the period between the drafting of the budget and the date of the costs management hearing.

Anna Lockyer is an Associate and Costs Lawyer in the Clarion Costs Department. You can contact her by email at Anna.Lockyer@Clarionsolicitors.com, or by phone on 0113 288 5619.

 

Proportionality in the Court of Protection

Stephanie KayeLeave a comment

You will have all heard about the ‘Jackson Reforms’, which so far, have not been something that Court of Protection practitioners have had to be too concerned about – until now.

As part of the ‘Jackson Reforms’, a new test of proportionality was introduced. Proportionality now trumps reasonableness and ‘necessity’. Even if a cost was reasonable and was necessary, it can be disallowed on the basis of proportionality. The purpose of this reform was to tackle disproportionate claims for costs.

The case of BNM and MGN Limited (see https://clarionlegalcosts.com/2016/06/10/who-needs-fixed-costs/#more-876) is an interesting case to consider in relation to the new test of proportionality, where a bill of costs was reduced from £167,389.45 to £83,964.80 on the basis of proportionality. This is one of the first cases to really demonstrate the power of CPR 44.3 (2) (‘Jackson test of proportionality’), which states:

Where the amount of costs is to be assessed on the standard basis, the court will –

(a) only allow costs which are proportionate to the matters in issue. Costs which are disproportionate in amount may be disallowed or reduced even if they were reasonably or necessarily incurred; and

 (b) resolve any doubt which it may have as to whether costs were reasonably and proportionately incurred or were reasonable and proportionate in amount in favour of the paying party.

 This ‘Jackson test of proportionality’ is something that has primarily been having an impact on civil and commercial claims for costs, however, we (Court of Protection Costs team at Clarion) are now starting to see the new test being applied to Court of Protection cases.

Under the new test, the Senior Courts Costs Office must assess a bill of costs (line by line) and determine what is reasonable. Thereafter, the new test of proportionality can be applied. The Costs Officer has the power to stand back and ask ‘was this a proportionate sum to incur on this matter taking into account all the factors relating to the case’, and in some instances, the answer can lead to significant further reductions to a Bill of Costs.

Going forward, we believe that this is something that will have an impact on Court of Protection cases. Not only will your costs be assessed based on what was reasonably incurred, but the SCCO can also consider other factors, such as the value of the Protected Party’s estate and other non-monetary influences when considering whether the assessed (reasonable amount) is proportionate.

We considered a recent assessment whereby the Protected Party’s estate was worth approximately £46,000.00. The Deputy submitted a bill of costs totalling £12,200.00. The bill was provisionally assessed at £11,500.00, but was thereafter limited to £9,000.00 due to the issue of proportionality, as a result of the value of the estate.

There is no guidance as to what is proportionate in these cases, however, the Costs Officer has the authority to determine what is proportionate at their own discretion. It will be interesting to see how this is applied going forward and whilst this area is still developing, requests for reviews or appeals may be appropriate. Albeit the financial position of the Protected Party is key, other factors such as the conduct of the Protected Party, the complexity of the matter and any key elements (international and business) may be influential in justifying your claim for costs.

If this is something which you require assistance with, please do not hesitate to contact myself or our team at COPCosts@clarionsolicitors.com.