New ACL Website

The Association of Costs Lawyers has launched its new website. Take a look.

Costs Lawyer Rights

Costs Lawyers have earned their long awaited right to litigate, says Sue Nash…

“It took many years for the Association of Law Costs Draftsmen, as it then was, to make the case for independent rights of practice for its members and have it accepted by government and Parliament. This has given birth to a new breed of highly professional and accountable costs lawyers who are regulated as vigorously as any other lawyer.”

See New Law Journal article

Concern over recoverability of ATE insurance in clinical negligence cases

The Statutory Instruments Joint Committee have reported The Recovery of Costs Insurance Premiums in Clinical Negligence Proceedings Regulations 2013 for appearing to be “..of doubtful vires and (to the extent that the vires exist) making an unexpected use of the power under which they were made.” The Report concludes that…

“…the wording of section 58C(2) [of the Courts and Legal Services Act 1990] at least arguably requires any regulations under that section to relate only to specified descriptions of proceedings and policies. Even if that view is found to be stricter than justified, the wording of the Explanatory Notes appears to create a clear expectation that coverage of the Regulations in respect of proceedings will be less than comprehensive.”

A response is awaited. 

Costs Management

The Hon Mr Justice Ramsey has delivered the 16th Implementation Lecture in relation to Sir Rupert Jackson’s reform package, concerning Costs Management. He unveiled additions to CPR3 (3.11 to 3.18), a new Practice Direction 3E and amendments to Section 6 of the Costs Practice Direction. The changes are intended to give effect to the Sir Rupert’s proposals for costs management based on four essential elements, namely:

(i) The parties prepare and exchange litigation budgets or (as the case proceeds) amended budgets.

(ii) The court states the extent to which those budgets are approved.

(iii) So far as possible, the court manages the case so that it proceeds within the approved budgets.

(iv) At the end of the litigation, the recoverable costs of the winning party are assessed in accordance with the approved budget.

Mr Justice Ramsey concluded by saying…

“Costs management forms an essential part of the reforms proposed by Sir Rupert. It will allow the courts properly to implement the new test of proportionate costs and to reduce the overall costs of litigation. The pilot schemes have shown that this is a new discipline which can and is being learnt. With proper training, solicitors, barristers, barristers’ clerks and judges can each play an important role in the management of the costs of litigation.”

The full Lecture can be read here.  

Fundamental dishonesty leads to removal of QOCS protection

Exaggerated symptoms see claimant lose QOCS protection in first ‘fundamental dishonesty’ decision 

A circuit judge has ruled in Gosling v Screwfix and Anr (unreported, 29 March 2014) that a personal injury claimant who exaggerated the extent of his ongoing symptoms should be denied the protection of qualified one-way costs shifting (QOCS) on the grounds that the claim was “fundamentally dishonest”. See the full Litigation Futures article.

MPs defeat challenge to CFA regulations as latest changes to CPR are published

The new regulations governing conditional fee agreements (CFAs) cleared their final hurdle yesterday after the government defeated a last-ditch Labour challenge to them.

Read the full Litigation Futures story here.

New Test for Proportionality

Lord Neuberger has unveiled the new test to be applied in relation to costs which are challenged as being disproprtionate. The new test – to be contained in CPR 44.4(5) – will come into force in April 2013 and will read as follows:

Costs incurred are proportionate if they bear a reasonable relationship to:

(a) the sums in issue in the proceedings; 
(b) the value of any non-monetary relief in issue in the proceedings; 
(c) the complexity of the litigation; 
(d) any additional work generated by the conduct of the paying party; and 
(e) any wider factors involved in the proceedings, such as reputation or public importance.

The Master of the Rolls went on to say….

“Obviously, the amount of money involved will normally be a very significant factor, but it will not be determinitive, and there will be issues such as whether one looks at the sum reasonably claimed or the sum recovered. Difficult questions may arise when one party claims that the point at issue is very important to him or her even though, objectively speaking, it is of little significance. Objective perspectives may well be more important than subjective ones in this area, but that remains to be assessed. And is the approach to proportionality to be the same for defendants’ costs as it is for those of claimants? Such issues will have to be worked out, but the working out will involve judges exercising that quality which they are pre-eminently expected to have, namely judgement” 

Read Lord Neuberger’s full speech here.

ACL elects new Chairman

Sue Nash appointed new Chairman by the Association of Costs Lawyers 

The Association of Costs Lawyers has elected Sue Nash as its new chairman to succeed Murray Heining at the expiry of his term of office on 19th April 2014. Read More.

The Offers to Settle in Civil Proceedings Order 2013

The Offers to Settle in Civil Proceedings Order 2013 has been laid before parliament and comes into force on 1 April 2013.

The Order introduces a new Part 36 sanction which will apply in circumstances where the court gives judgment to a Claimant which is “at least as advantageous” as their own offer, enabling the court to award an additional amount in respect of either costs or damages, to be calculated as follows:

If the claim includes both a claim for an amount of money and a non-monetary claim, a percentage of damages…

  1. Up to £500,000 – 10% of the amount awarded.

  2. Between £500,000 and £1,000,000 – 10% of the first £500,000 and 5% of the amount awarded above that figure.

  3. Above £1,000,000 – 7.5% of the first £1,000,000 and 0.001% of the amount awarded above that figure.

If the claim for non-monetary relief only, a percentage of costs…

  1. Up to £500,000 – 10% of the costs ordered to be paid.

  2. Between £500,000 and £1,000,000 – 10% of the first £500,000 and 5% of any costs ordered to be paid above that figure.

JR challenge to legal aid cuts in medical negligence claims

The charity Action against Medical Accidents (AvMA) is seeking to judicially review the government’s proposals to axe legal aid for victims of medical negligence. Read here and complete the online petition.