Harmans Costs Brief - June 2014

Is it really June already? We've dealt with the London Legal Walk, the latest CPR changes, Mitchell, more Mitchell, not to mention the ACL annual conference!

As usual, we aim to bring you all the latest news and developments in Costs along with expert analysis.  We hope you enjoy the latest issue of Costs Brief.

Many thanks, Harmans Costs 
For even more news and comment visit our website

What you need to know about the CPR changes that came into force on 6 June 2014

There are three small changes:
  • changes to ensure it is clear that CPR 3.12 dealing with costs budgeting applies in the Admiralty and Commercial Courts
  • how the specialist planning judges will be appointed
  • new provisions at CPR 3.8(4) allowing parties to extend time, the so called 'buffer agreements'
The change with a potential major impact is the introduction of so called ‘Buffer Agreements.’  As the Jackson Reforms have resulted in procedural point taking the new provision at CPR 3.8(4) will enable parties to agree reasonable and sensible extensions of time thereby “softening” the effect of CPR 3.8 and hopefully bringing an end to, or at least curbing, this practice.

The Civil Procedure (Amendment No. 5) Rules 2014 for 73rd update

Practice direction for 73rd update


In April there were no fewer than 43 reported decisions on Mitchell.


Although there have been individual appeals on their facts to the Court of Appeal since Mitchell, there is no case (yet) which purports to resolve the various controversies of the Mitchell doctrine.


For the first time the Court of Appeal has listed 3 appeals together to be heard over 2 days (16 – 17 June) by Lord Dyson MR. It is hoped that the court will give further guidance which will enable litigators to properly understand the application of the Mitchell principles and their limits.


Vikram Sachdeva is acting for the Appellant in one of the three cases: Utilise TDS Limited v Davies [2014] EWHC 834 (Ch).


Watch this space!

Employment Tribunal Fees

The trade union UNISON is continuing its battle through the courts to challenge the Tribunal fees introduced by the government recently.

UNISON say that the fees break EU law by denying access to justice.

Their first challenge was not successful, because they did not have sufficient evidence to support their claims. But the statistics are now clear - Tribunal claims have dropped by 79% in a year.

The argument that access to justice has been denied would seem to be gathering momentum.

UNISON have already secured a concession from the government, and claimants who are successful will now generally have their fees reimbursed.

UNISON have everything to fight for, and eagerly await the decision of the Court of Appeal.

Relief from Sanctions - a year on from Mitchell
Following the decision in the Mitchell case, there was a feeling that from now on, cases were going to be routinely denied relief from sanctions for the most minor of errors. As the following cases below show, although the Courts have become stricter, relief from sanctions is achievable.

The Court makes a distinction between ‘in time’ applications and ‘out of time’ applications.

In Kaneria v Kaneria [2014] EWHC 1165 (Ch) it was held that the decision and guidelines in Mitchell did not apply to an 'in time' application for an extension of time. This was to be decided by reference to the overriding objective.

In applying the overriding objective, the court considered the need to enforce 'compliance with rules, practice directions and orders'. However, unlike in the case of relief from sanctions, the consideration did not have a preferential status and was to be used as an aid.

This means that the Court would look at an ‘in time’ application as an application for extension of time and not a relief from sanctions application.

In the judgment, in Michael and Another v Middleton and another  [2013] EWHC 2881 (Ch), when dealing with an ‘out of time’ application, Judge David Cooke provided useful guidance for parties who wish to conduct litigation and gave an indication of what the courts would be likely consider when faced with applications for relief from sanctions.

‘the overall justice of the application and the two specific factors mentioned in the rule in terms of conducting the litigation efficiently and saving costs and enforcing compliance with the orders of the court ...’

In this case, Judge Cooke, did not allow relief from sanctions as he felt that he was being asked to reinstate a claim and impose a new timetable.

To read the rest of Nishma Shah's article click here
ACL Annual Costs Conference 2014 – Special Report

The London Legal Walk 2014

Nine members of the Harmans team again took part in the London Legal Walk on 19th May. Both the Aylesbury and Chelmsford offices were represented.


The weather was just about perfect and over 8,000 entrants turned out for the event. This made for interesting road crossings for those of us who started off early as the return course met the outgoing course at both Buckingham Palace and Hyde Park Corner. Determination was needed so as not to get carried off in the wrong direction.


Having studied the entrant list it was amazing how many people we knew took part and equally amazing that we did not cross paths with any of them.


One member of our team, Steve Jones, decided to run the course and actually completed it in a little over one hour. This included an obligatory detour towards Downing Street mirroring the error made by the writer during last year’s event, so a great effort.


The writer, who is of a more delicate constitution, managed to walk round in 1 hour 40 minutes, a slight improvement over last year, however, it took my legs three days to get over it.


Certain members, who shall remain nameless, and who were just relieved to have made it to the end, offset any possible good that they were doing themselves by eating sweets during most of the course. (We preferred to think of it as necessary refuelling - Editor)


While having the necessary debrief at the end of the run we were interrupted by a fervent fan of Guinness who was convinced that the walk was raising funds for lawyers who according to him ‘already had enough money’. We did try and convince him of the real purpose of the walk, however, I fear that he left us still believing the story that he preferred to believe!  Perhaps the truth may have dawned the next morning..


Despite this we remain convinced that the walk was in aid of a very worthy cause and we all look forward to taking part in the 2015 event.

The London Legal Walk 2014 is on track to raise over £530,000 which is used to support law centres and legal advice agencies in London and the South East by providing them with grant funding alongside other forms of support.


Our intrepid London Legal Walk team (minus John Moss) enjoying a well earned drink at the finish line

Commercial Court finds desire to limit costs a good reason for filing witness statement 3 months late

In the case of Monde Petroleum SA v Weternzagros Ltd, 19 May 2014, QBD, Hamblen J, though the breach of order was not trivial, the Court granted the claimant relief from sanction in respect to a witness statement which was served three months late as it was satisfied that there was good reason for that delay as the claimant was trying to save costs where there were concurrent arbitration proceedings which substantially overlapped with the claim. The late statement itself was clarificatory and the Court would have wanted to see it. This is an interesting decision which might show an increasing willingness of the Court to acknowledge that procedural rules can sometimes reasonably be overlooked if done so for a greater good.

New Negligence Law for England & Wales proposed

The Ministry of Justice has proposed additional factors for consideration when deciding negligence cases that seek to ‘tackle the growth of compensation culture’ and support employers.  Details here.


Follow us on Twitter @HarmansCosts for the latest industry comment.  We also hold regular Q&A sessions when you can tweet or DM our legal costs experts a question - look out for details of our next one coming soon.
It's still not too late to sponsor us for our efforts at The London Legal Walk (or in Steve's case jog) which took place on Monday 19 May. It was the 10th anniversary of this great event and was for a very worthwhile cause. We'd be delighted if you could sponsor us.  You can click the banner below for more information on the event and check out the official photographs.  Why not join us next year?
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