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Harmans Costs Brief - October 2013
Welcome to the latest edition of our free e-newsletter, Harmans Costs Brief, and a special welcome to all of our new subscribers following our recent costs seminar.  We aim to bring you all the latest industry comment and analysis on Costs post-Jackson and hope you will find this a useful resource.
 
Many thanks, Harmans Costs                        
For even more news and comment visit our website www.harmanscosts.com
John Moss considers Replies to points of dispute and
Provisional Assessment

 
You are faced with points of dispute to your bill which totals less than £75,000. The bill and notice of commencement were served on the paying party post 1/4/13. As we know the bill will be provisionally assessed. Despite the bill being comprehensive, replies are the only remaining opportunity to put your client’s case to the costs judge short of a risky appeal and oral hearing (20% rule).

PD 12.1 AND 12.2 attaching to CPR 47.13 restricts what can be included in your replies to:

‘points of principle and concessions only. The reply must not contain general denials, specific denials or standard form responses’ (thereby implying that the reply can contain something).

It goes on to say ‘Whenever practicable, the reply must be set out in the form of Precedent G’.

When the CPD was first revealed there was much comment (mainly by defendants and paying parties) on the definition of ‘points of principle’. Correctly, in my view, this seemed to conclude that a point of principle is ‘one which requires a decision before the individual items in the bill are addressed’ (as specified in CPD 8.2(a)).

At the time there did not appear to be any substantive comment on ‘general denials, specific denials or standard form responses’ save for opinions that the paying party could only make a simple concession.

Surely these descriptions should be open to interpretation as well and the receiving party (unless it so wishes) should not be restricted to a simple statement of concession.

You can read the rest of John's article here.

The Part 8 procedure
 
We are now six months on from the wholesale changes to the civil costs system. Practitioners are finding their way around previously alien procedures with varying degrees of success. Whilst the tasks necessitated by the changes as a whole are not without difficulty and complication, there appears to be a reasonable swell of consensus that the introduction of provisional assessments for bills of less than £75,000 is a welcome development.

Provisional assessment stands to simplify and strip expense from a previously cumbersome process. It is arguable however that the reforms could go further still to reduce the expense, time and effort involved in many costs claims.

The Part 8 procedure currently remains unavoidable when seeking assessment of costs arising from a case settled prior to issue. Such cases give rise to a significant proportion of costs claims under the £75,000 limit. The receiving party has to embark upon the Part 8 process in order to obtain a costs order and therefore be able to commence assessment proceedings.

 The Part 8 procedure is not inherently costly and can in theory be completed fairly quickly, but the practicality of the matter is often quite different. Many Court staff are helpful and knowledgeable but inevitably that is not universal. Regrettably it is not uncommon to have to persevere for months in a bid to obtain a simple order to which both parties impliedly consented by virtue of the settlement terms in the substantive claim.

Where parties can agree costs in principle but not in amount, the overriding objective would surely be better served by the introduction of a standard form, signature and submission of which would confirm the parties’ agreement to be bound by the relevant HMCTS assessment procedure.

Such a “Consent to Assessment” form, if introduced, could constitute a deemed order thus enabling a receiving party to serve a bill of costs under a Notice of Commencement in first instance,  subjecting the costs claim to a framework of time limits and putting an end point firmly in sight. The need for a Court Number could be easily dealt with by way of an Assessment Reference Number, as used presently by the Senior Courts Costs Office. The process envisaged is that a signed consent form could be submitted electronically with a payment of £45, upon receipt of which a document constituting a deemed order could immediately be generated and returned by email. Such a process would be purely administrative and could save time for Court staff.

Occasions would no doubt arise upon which this would not be felt to be appropriate by one of the parties, in which instance they could insist on reverting to the existing procedure, albeit with the presumption that they would meet the costs of the Part 8 process.

In comparison with the changes to date, an optional bypass of the Part 8 process would surely be a straightforward and uncontroversial way to speed up the civil costs procedure.

Steve Jones, Partner and Costs Lawyer

"Matthew is a sound speaker – he always has pearls of wisdom to impart!"


"I very much enjoyed it, and a talk next April
is an excellent idea."


"It was a very useful seminar, it was good to see what Matthew's views were on the intricacies of budgeting.  I would certainly be interested in attending another session."


"Matthew is a very engaging and knowledgeable speaker."


Above is just some of the brilliant feedback following our last costs seminar held last month at The Law Society in London.  Due to popular demand we are already planning our next one for April 2014, focusing on developments 12 months post Jackson.

Our seminars are free and open to all clients but are
limited to 30 attendees per session.  To register your interest for future Harmans costs seminars please email vikki.knight@harmanscosts.com.
Post Jackson any changes?
 
The new legal landscape has now been traversed for the best part of 6 months so what has changed?

On the face of it not too much; the simple reason being the majority of the changes introduced were not retrospective and it is the cases issued post April 2013 and work undertaken post April 2013 that will be scrutinised in the coming months.

Solicitors, Barristers and Costs Lawyers alike await early guidance with regard to, for example, how the Costs Judges will apply the new rules relating to Proportionality. We are attempting to get to grips with the fact that costs “which are disproportionate in amount may be disallowed or reduced even if they were reasonably or necessarily incurred”* but just how will the Costs Judges, as suggested in the Jackson report and subsequently, undertake a detailed assessment over a number of days allowing only items considered reasonable and proportionate to the issues involved and amounts claimed “stand back” at the end of the assessment to consider the total allowed and then if the figure still appears “disproportionate” make a further reduction? Should the Costs Judge simply allow a total figure he finds acceptable? Should a percentage reduction be applied? Should the damages (if any) be taken in to account i.e. costs not more than the damages recovered or damages plus 20%? Costs Judges have confessed to not knowing the answer and unavoidable satellite litigation looms.

Budgets have been embraced by both sides though not it must be said warmly; teething problems still need to be addressed particularly in respect of the available “on line” budgets which to date have failed to carry out correctly the necessary calculations...still early days and certainly the judiciary appears to have taken to budgeting.

However it is case management which has really been adopted with great relish by the Courts if early cases are any thing to go by.  Amendments to budgets are not being entertained unless there is very (very) good reason; cases are being struck out for non compliance with time tables set out in the Civil Procedure Rules and Judges are being advised that strong case management decisions will be supported by the Court of Appeal.

To read more of this article by Gary Knight including his take on 'Plebgate' just click here.

*CPR 44.3 (2) (a)
 
This article was first published in the Marketform MedMal magazine.

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