Tag: n260

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.

CPR Committee seeks feedback on the Summary Assessment of Costs Pilot (PD51X) 

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The summary assessment of costs pilot began in April 2019 and introduced the N260A for interim applications and N260B for trial.

The pilot, which was originally to run to April 2021, has been extended for a further year due to low take up. The possible reasons for the low uptake were discussed at the CPRC open meeting in May 2021 and you can read our full blog on that meeting here.

It was decided that feedback would be sought and the resulting online survey is now live at https://www.smartsurvey.co.uk/s/BPT2Q7/

The survey seeks views on the level of detail required in N206A and N260B and reasons why practitioners may have chosen not to use the new forms where PD 51X applies.

The survey ends on 30th July 2021

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

A closer look at summary assessment

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In the High Court case of ABS Company Ltd v Pantaenius UK Ltd & Ors [2020] EWHC 3720 (Comm), HHJ Pelling QC elected to assess costs at the end of a trial which was part of the shorter trial scheme. The actual judgement doesn’t deal with costs until paragraph 60 of the judgment, albeit it makes interesting reading in terms of super yachts!

The Claimant was successful in the main action, and the Claimant’s costs totalled circa £213,000. The statement of costs was phased in accordance with precedent H phases, albeit the matter was not subject to a costs management order. 

 The judge was mindful of his duty to undertake a broad brush approach to costs given that it was a summary assessment, and his aim from the outset was to ensure that he arrived at a figure that was reasonable and proportionate for the work undertaken. The judge recognised that current 2010 guideline hourly rates were “significant [sic] out of date” and that the “conventional approach in relation to guideline rates is to uplift them by about 25 per cent in order to reflect the effects of inflation…” He also recognised that “specialist solicitors in specialist areas of activity should recover an uplifted fee to reflect that specialism”. In addition, he considered the rate being charged by the opponent (an argument that is often seen within detailed assessment proceedings) in order to compare whether the parties were on a like for like footing with regards to charge out rates. The judge allowed the rates as claimed (the judgment did not state the hourly rates claimed).

The judge then considered his options in respect of the summary assessment and decided that it would be a disservice to apply a broad brush approach to the statement of costs globally and that, instead, he had a duty to look at the case on a phase-by-phase basis. Paragraphs 66 to 82 (paragraph 82 being the concluding paragraph to the judgment) provided an insight into how the judge undertook a summary assessment on a phase by phase basis. What is interesting is that the phased statement of costs resulted in a much more structured consideration of the work carried out, and allowed the judge to see with transparency the work that was undertaken at each stage of the claim. This, in turn, led to a well-reasoned summary assessment.

This article was featured in our February 2021 newsletter, see the full newsletter here.

Joanne Chase is a Senior Associate in our Costs and Litigation Funding Team. If you have any questions, please contact her on 07826 166 300 or at joanne.chase@clarionsolicitors.com

Changes in relation to CPR Practice Direction 21

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From 6 April 2019, Practice Direction 21 of the CPR will be amended to make it compulsory for a bill of costs or a “informal breakdown in the form of a schedule” to be prepared and filed with any application for the approval of payment of expenses from the damages of a protected party or minor.

Many cases now settle by way of a JSM or Mediation. We recommend preparing a Bill of Costs for the JSM or Mediation in order to:

  1. Try and reach settlement of costs at the ADR meeting (to avoid the time and expense of detailed assessment);
  2. If a settlement on costs cannot be achieved, then to obtain a healthy payment on account; and
  3. Proceed swiftly post settlement with any application under CPR 21 (where applicable)The bill or schedule should make a clear distinction between inter partes and solicitor/own client costs. In terms of a schedule, we recommend preparing a statement of costs for summary assessment (Form N260 or N260B) which can be adapted, where appropriate.The bill or schedule will enable the Judge at the approval hearing to properly determine the appropriate amount to be deducted from damages, which may include (in terms of a Solicitor) a success fee, ATE insurance premium and any inter partes costs shortfall (if claimed).This blog was prepared by Andrew McAulay who is a Partner at Clarion and the Head of the Costs and Litigation Funding team. Andrew can be contacted at andrew.mcaulay@clarionsolcitors.com or on 0113 336 3334.