To view this page ensure that Adobe Flash Player version
11.1.0 or greater is installed.
Clarity at Last!
For cases that do not go beyond
Provisional Assessment, the £1500.00
allowance acts as a cap on recovery of
Party/Party costs and quite rightly
excludes the court fee, which alone can
be as much as £980 not to forget VAT.
Amendments have been made to the
CPR coming into force 1st October 2013.
Costs Budgets are still a hot topic and
conversations are held daily with clients
and prospective clients who wish to
receive guidance and advice. Please,
please, please instruct your Costs
Lawyer/Draftsman in plenty of time to
ensure matters are not rushed. Ideally as
soon as matters have been issued, which
gives an ample window for the exercise to
be carried out and it is a must that
Solicitor client and Costs Lawyer confer in
order that they work as a team. There is
much thought to be given to budgets and
crucial assumptions to be made, Counsel
and experts are all to be involved in the
process in stating their reasonable fees.
The costs budgeting regime was thrown
into the spotlight again with the firm
representing Andrew Mitchell MP in his
Libel action ‘plebgate’, failed to submit
a costs budget in time. Failure to get a
budget in seven days before the case
management conference limited the
budget to court fees only. Be warned!
No longer can budgets be prepared on
short notice, timing is the key.
With August almost over as I write, and
with emails met with I am on annual
leave and will revert when I return to the
office, it has given us the opportunity in
our office to surface and take a deep
breath, ready for the influx of Budgets
expected from September onwards.
Should you wish to know more about
our Budgeting service, please feel free to
call our offices and speak with either
Paul Kay or myself who will be happy to
talk things through with you or
alternatively email addresses as below.
Costs Lawyer and
2 The leading expert in
the field of civil
procedure and adviser to
the top judiciary on law
reform Things have changed and times are different.There is to be greater scrutiny of costs
than ever before. Oddly, a series of recent cases identify avoidable errors. Equally,
if you are the paying party then these represent useful arguments to throw at the
1. No matter how glamorous your expert, do not have them in court for the
entirety of the hearing unless there is something monumental about the case.
In ELVANITE FULL CIRCLE LTD V AMEC (2013) EWHC 1643 (TCC) Coulson
J rightly declared that it was completely unnecessary and so unsustainable for
one expert to attend every day of the trial. Do ask yourself if a case warrants
an expert at all. In lower value cases there is now a real temptation for Judges
to foist a single joint expert upon the parties since one expert ought to be
cheaper than two.
2. The ELVANITE decision is also well worth reading because the Judge gives
guidance on when it might be just to vary a court budget. Critically, he says
at paragraph 54 of the transcript that it is no good reason to adjust the
numbers where they had “woefully underestimated the experts’ fees”. I have
no financial interest here but, frankly, i think it bonkers to draw a budget
without some input, great or small, from your chosen costs lawyer.
3. Finally, ELVANITE states at paragraph 50 that, post Jackson, “questions of
prejudice are likely to be much less relevant than they were before”. Exactly.
No one should think that they can now escape punishment for breaching the
Rules just because it does not directly damage their opponent. The new
thinking is that Rules are there to be obeyed and to default is a wrong in itself.
4. Anyone preparing witness statements should be much more precise and
selective than ever before. In NICHOLLS V LADBROKES (2013) EWCA
Civ.1963 Lord Justice Jackson gave some, as ever, superb guidance which every
defendant should take to heart. ”The defence of any personal injury case is a
serious task, to be undertaken in a fair and responsible manner. It is
inappropriate to serve witness statements which refute every allegation, whether
right or wrong “(at para.69). He continued “the vast majority of personal injury
actions settle before trial on the basis of the written evidence served. Therefore
the written evidence matters, even if a party knows that it will abandon certain
points in the event of a trial” (para.70). Because of unsatisfactory conduct in
this regard the winning defendant lost 20% of all costs.
5. The cost of Counsel is an integral part of the litigation spend. Having watched
the modest legend that is HHJ Simon Brown QC in the budgeting pilot, you
and your clients now need to decide whether the proposed advocate is
justified. Do we need a silk? Is this the right person for the job having regard
to complexity, content and potential value? If a decision is taken that you
suspect might ultimately be challenged then make a contemporaneous note
for the file setting out your justification. It can do no harm.
6. It might sound trite but I believe that every litigator will be safer if, at every
step along the litigation path, they ask themselves whether what they are
proposing to do is reasonable. Different people may come up with different
replies but that is now the simple, sensible litmus test.
7. No one, not even Sir Rupert, knows what proportionality means today. That
is a question to be answered by the Court Of Appeal. I suggest that keeping a
watchful eye on the relationship between damages and costs will probably
be your smartest move to avoid trouble .
Enjoy your read.
Professor Dom Regan
Dominic Regan is, with Jef Zindani, the co -author of ‘ Surviving Jackson ‘July 2013
published by Sun at £100.