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Harmans Costs Brief - October 2014

 

Autumn is in full swing and there is a lot to cover this month - from the publication and impending introduction of the J-Codes to the latest CPR updates, as well as relief from sanctions allowed on Appeal.  Costs Brief is always full of the latest industry news and comment on Costs.  We hope you enjoy it and continue to find it a useful resource

Many thanks, Harmans Costs 

For even more news and comment visit our website www.harmanscosts.com

Relief from sanctions allowed on Appeal

 

The Appeal in Long v Value Properties & Ocean Trade Limited was formally handed down on 1 October 2014.

 

The receiving party had previously been denied relief from sanctions by the Costs Judge but the Appeal was allowed. 

 

The Judgment states, "…this appeal must be allowed, either on the basis that an incorrect sanction has been applied to the breach in question, or, if I am wrong about that, on the basis that relief from that sanction in its entirety should be granted by the court pursuant to CPR 3.9."

 

The Appeal Judge also stated, inter alia, that, "For the avoidance of doubt, I record that this would have been my conclusion even in the absence of the helpful guidance in Denton" and further that, "I would also add that the defendants' behaviour here has been precisely the kind of opportunistic and non-cooperative conduct in litigation condemned by the Court of Appeal in Denton."

 

You can read the Appeal Judgment here.

Publication of J-Codes

Following the latest announcement regarding the publication and impending introduction of the J-Codes we wanted to reassure you all that we are fully prepared for the change.  These codes represent the first step towards the new format bill of costs and although this might sound daunting everything is in place for a seamless transition as and when the new bill format is introduced.

Here are some useful links which provide some more details about the J-Codes:

Recent announcement from the LEDES Oversight Committee:
http://utbms.com/jackson-ew-utbms/

The main guideline document which provides the details of the J-Codes:
Jackson-Review-UTBMS-LitCode-Revision-EW-UTBMS-J-Code-Documentation-and-Guidelines-v5-2.214

If you have any queries or questions please don't hesitate to get in touch.

Partner and Costs Lawyer Gary Knight's Legal Costs Update
 
Following a winter of discontent the decision of the Court of Appeal in the matter of Denton brought a sunnier outlook, if not glorious summer, for underfire Solicitors with green shoots of common sense springing up almost every where.

Denton is dealt with elsewhere in detail and I therefore consider a small selection of “post” Denton decisions that provide encouragement that the strict application of Mitchell is, if not forgotten for ever, no longer the requirement for a draconian approach in applications for relief to be adopted.

Kenneth and Paul Hart –v- Susan and Brian Burridge [2014] EWCA Civ 992 – Court of Appeal- LJ Richards, LJ Black and LJ Voss – 22/07/2014
An appeal had been brought against the decision of a judge who, when dealing with claims brought by various beneficiaries under a deceased’s will, held that Mrs Burridge had been guilty of presumed undue influence over her mother (the deceased) relating to the sale of properties and found the Defendants liable with the husband having been found to have “shared equally” in the benefits which resulted from the undue influence.

To read the rest of this decision and other post-Denton decisions just click here.
 
Legal aid work in family cases drops 27% compared to
the same quarter last year

 
According to figures published by the Ministry of Justice (MOJ), legal aid work in family cases has dropped 27% compared to the same quarter last year.

The category of family legal aid covers work on both private and public law and includes work associated with the Children Act, domestic abuse, financial provision and family mediation. Figures for each category are not available for legal help matters.

Figures in the MOJs first quarterly edition of legal aid statistics, which have previously been published only annually, show that the implementation of the Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) in April 2013 resulted in large reductions in legal help workload and expenditure. The figures also show a downturn in publicly funded crime cases and the remaining categories of civil work.

The report reveals that the use of family mediation has fallen since the implementation of LASPO in April 2013. However, since the 22 April 2014 changes from the Children and Families Act came into effect, making it a requirement for separating couples to attend a meeting to find out about mediation before the dispute can be taken to court (MIAMs), there has been an increase in the number of mediation assessments in April to June 2014, compared to the previous quarter, but this has yet to filter through to these quarterly statistics.
 
Costs Draftsman Nishma Shah examines the importance of a well-placed Part 36 offer

I recently dealt with a personal injury claim where the Claimant was awarded indemnity costs for part of the claim. Negotiations ensued, Points of Dispute and replies were served and the Defendant made a full and final offer of £28,000.00 but this was rejected.

The claim was then provisionally assessed in the sum of £28,051.97 plus interest at £6.15 per day and costs awarded in the sum of £2,720.00. Both parties agreed the assessed figure but the Defendant wrote to the Court arguing that as the sum awarded was close to the Part 36 offer they had made, the Claimant should not be awarded costs of the assessment. The Defendant’s relied upon CPR Rule 47.20 (3)(a) and (b).  

The Claimant indicated that the Defendant’s approach was incorrect and that should the Defendant had wanted to challenge an aspect of the provisional assessment, that an oral hearing should have been requested and the Defendant would have to appeal the order already made.

The Court in reply stated that the Defendant would need to formally request an oral hearing in the manner set out in CPR 47.15 and that whilst the Practice Direction indicates that challenges to the order for costs are likely to be dealt with on paper that does not mean that the formal requirement can be circumvented, not least because there may be costs flowing from the challenge which would need to be dealt with in accordance with the specific provisions of 47.15.

The Court then went on to indicate that as the reductions made to the Bill of Costs related mainly to the hourly rates and the success fee as opposed to the documents there was a misleading percentage reduction. Moreover the Court indicated that it appeared that the Defendant did not make a sufficient Part 36 offer despite the extent of the reduction. The Court also dismissed the arguments raised by the Defendant as being dismissed in the case of Carver v BAA and as such the extent by which the offer was beaten is not material even if the interest question is ignored.

To conclude, as a Defendant, a well placed Part 36 offer will be the difference between having to pay additional assessment costs and recovering part of their own costs of the assessment.

As a Claimant, careful consideration will need to be given as to whether the costs of continued litigation will outweigh a good Part 36 offer when costs are to be assessed to the standard basis.

 

October 2014 CPR updates

The new provisions came into force on 1 October 2014 and are outlined in the Civil Procedure (Amendment No 6) Rules 2014, SI 2014/2044, and the 75th Update - Practice Direction Amendments.

These amendments come hot on the heels of the 74th Update which came into force on 30 July which provided for a new practice direction 2C to deal with starting proceedings in the County Court

Updated Legal Aid Agency Guidance on the Remuneration of Expert Fees

Click here for the updated LAA Guidance on expert witness fees.

We had a brilliant night in London at Sarastro's last week celebrating some big Birthdays that have been occurring at Harmans lately (you have to go just to see the toilets!)  Jim Knight is next, on Halloween to be precise, spooky!
 

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