partners in costs magazine summer 2016

PUTTING PROFIT BACK INTO LEGAL COSTS.

Issue 3 | Summer 2016 www.pic.legal

TO THRIVE: A MASTERCLASSHOW TO SUSTAIN COSTS & REWARDS IN UNCERTAIN TIMES

Features09 A CHANGE OF HEART

13 RISK: AN END TO BAD HABITS

14 CFAS: ASSIGN WITH CERTAINTY

19 DEALMAKERS

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@PIC_Legal

PIC Legal Costs Specialists

Professor Dominic Regan & the ZebraTD Technical Advisory Board

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• Good for entire journey pre/post issue and trial

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ALL CHANGE (AGAIN)!We are only a few months into the year and already new changes to the CPR are afoot! Most of the changes introduced by the 83rd update came into force at the start of April 2016. There are some crucial changes to the Costs Management Process, both in terms of completing the Precedent H itself and in terms of the filing and service of the Costs Budget. Deadlines must be watched carefully.

For matters where the value of the claim on the Claim Form is less than £50,000 the budget must be filed and served with the Directions Questionnaires. For all other matters, the budget must be served no later than 21 days before the first Case Management Conference. Full details of the update are available via www.justice.gov.uk/courts/procedure-rules/civil

A new Precedent R will be introduced to enable parties to inform the Court of the outcome of Budget discussions. There are also changes to Bill format, with all Bills to be split from 1 April 2013, where proceedings were issued after this date. For cases where a Costs Management Order has been made, Bills must divided into separate parts for each phase of the Budget, with each part further separated to distinguish between incurred and anticipated costs.

It is again a time of great change and we are excited to be taking this journey with our clients! It is our goal to help our clients maximise their costs. To this end,

we are running our PIC Roadshow ‘Thrive Not Survive!’ aimed at all personal injury and clinical negligence practitioners throughout May 2016. We look forward to seeing you there!

Partners In Costs | Summer Newsletter | 3

It remains of utmost importance to ensure that budgets are correct and reflect the full costs of the matter, as Bills of Costs will be increasingly scrutinised against any approved Budget!

Teresa Aitken, Chairperson

PIC ROADSHOW

Contact the PIC Legal team today... 03458 72 76 78 [email protected] 72 76 74

Our series of exclusive Roadshows, with acclaimed legal speaker Professor Dominic Regan, aim to guide PI & Clinical Negligence professionals into the new age of litigation, allowing them to thrive not survive in challenging times.

At a time when the PI and Clinical Negligence sectors face another round of practice reform and costs limitations, the PIC Roadshow will offer vital guidance, support and inspiration to practitioners and practice leaders alike.

PIC ROADSHOW DATES:

9 May 2016: Bristol: St John’s Chambers, 101 Victoria Street BS1 6PU

10 May 2016: Manchester: Deans Court Chambers, 24 St John Street M3 4DF

11 May 2016: Newcastle: Live Theatre, Broad Chare NE1 3DQ

18 May 2016: London: Devonshires Solicitors, 30 Finsbury Circus EC2M 7DT

19 May 2016: Birmingham: 80 Cambridge St, Birmingham, West Midlands B1 2NP

PROGRAMMESFull speaker names & programmes available on http://pic.legal/category/upcoming-events/Bristol, Manchester, Newcastle and Birmingham events will start at 8.00am and close at 10.30amLondon event will start at 3.30pm and close at 5.30pmEach event carries 1.5 CPD points

COSTCharitable donation of £25 per delegate. Proceeds of the ticket sales will be given to Headway and the Child Brain Injury Trust.

Professor Dominic Regan will be joined by leading counsel from the regions as well as experts from PIC to share advice on the implications of change to practice, where practices need to be and how to achieve growth in challenging times.

Part 36

Costs case law

Pitfalls to avoid

What’s on the horizon!

How to remain profitable in the new Jackson Era

Key themes include:

Supporting Personal Injury & Clinical Negligence success.

Thrive Not Survive!The PIC Roadshow

For further information and to book please visit pic.legal/category/upcoming-events/

or email: [email protected]

Dominic, a qualified Solicitor, is the most prolific speaker on legal issues in the UK today. Pegged as ‘the Lawyers’ Lawyer’, Dominic has advised Lord Justice Jackson on costs budgeting and management. He has also worked alongside HH Judge Simon Brown QC, who pioneered case/costs management.

Professor Dominic Regan

Reuben is the Managing Director of PIC and a leading figure in costs thought leadership and innovation. He has overseen the extensive growth of the company in recent years, whilst specialising in litigation project management and practical budgeting. Reuben is a prolific trainer for AvMA, APIL and is a contributor to Butterworths Costs Service.

Reuben Glynn

In support of


ContentsIssue 3 | Partners In Costs | Summer Newsletter | [email protected]

26Summer Bargain Bottles A Wine Review by Professor Dominic Regan

An End to Bad Habits By David Pipkin, Temple Legal Protection Ltd

Dealmakers Professor Dominic Regan

03 Welcome to Partners In Costs

07 A Fresh Approach, Reuben Glynn

10/11 Where Next For Civil Costs?

13 An End To Bad Habits, David Pipkin

14/15 Assign With Certainty, ZebraTD Technical Advisory Board

16/17 Balancing Act, Steve Rowley

18 Funding Lessons, Sean Linley

19 Dealmakers, Professor Dominic Regan

20 Charging Blindly On? Joe Rose

21 Back to Basics, John Plunkett

23 Control Boundaries, Alex Taylor

A Change of Heart Chairperson Teresa Aitken

24 A Day In The Life Of… Matthew Beech, PIC

25 Charity Spotlight: Back Up Trust

25 Out & About

26 Bargain Bottles

27 You Ask…The Rt. Honourable Judge Smyth-Judge

27

You Ask… The Rt. Honourable Judge Smyth-Judge

09

13 19

Request a trial or sign up for the free bulletin @www.costslawreports.co.uk

Buy now at www.classlegal.com/costsandfees

The essential source book for alllitigators, costs lawyers & legal businessmanagers● Updated annually each April

● £70

● A4, paperback

● Print & digital editions available

General Editor: Keith BiggsConsultant Editors: Colin Campbell, Kain Knight &Teresa Aitken, Partners in Costs

Out now - published April 2016

Costs Law Reports are the specialistauthority in costs law cases.Cited regularly in all levels of court, they can be reliedon for speed, breadth and depth of coverage with anarchive stretching back to 1910.

Our accompanying Costs Law Bulletin, distributed freeeach month, also means that you will never miss a keycase.

Available in print or online editions , the online editionalso benefits from additional cases and access to thecomplete archive.

Available in print & online - free trial available

General Editors

Colin Campbell, former CostsMaster now Consultant, KainKnight

Teresa Aitken, Director Partnersin Costs

www.classlegal.com

6 | Partners In Costs | Summer Newsletter


Reuben Glynn MD of the PIC Group

The Court of Appeal Decision in Sarpd Oil changes the face of budgeting forever, as Reuben Glynn reports.

A FRESH APPROACH

T he Right Honourable Lord Justice Longmore in the court of appeal handed down a

judgment on Sarpd Oil International Limited and Addax Energy SA & ANR [2016] EWCA Civ 120 on 3 March 2016 which will change the approach to budgeting forever.

This is an appeal about security for costs in a comparatively ordinary international purchase contract case proceeding in the Commercial Court. Security for costs was appropriate, however the question then become one of what the value of security should be. The parties had different views.

Mr Nolan submitted that the judge should have gone behind the costs budget approved by Blair J and examined for himself whether certain sums recorded in the costs budget as having already been incurred as at 21 May 2015 were reasonable and proportionate costs.

Mr Lewis, on the other hand, submitted the judge was correct to use the costs budget as his reference point. He submitted that the judge should assess the sum to be provided as security for costs by reference

to Addax’s approved costs budget and should not permit the Respondent to go behind the figures in the costs budget which have already been approved by the court by the order made by Blair J. Similarly, we should assess Glencore’s likely recoverable costs by reference to its costs budget.

The following key statements were made by Court of Appeal:

1 “In a case where the parties agree a costs budget in whole or in part and that is recorded in the relevant costs management order (as contemplated by Part 3.15(2)(a)), the rule in Part 3.18(b) applies both to the agreed incurred costs element and to the agreed estimated costs element.”

2 “If the court does record comments about the incurred costs, they will carry significant weight when the court comes to exercise its general discretion as to costs under CPR Part 44 at the end of the trial.”

3 “Parties coming to the first CMC to debate their respective costs budgets

therefore know that that is the appropriate occasion on which to contest the costs items in those budgets, both in relation to the incurred costs elements in their respective budgets and in relation to the estimated costs elements.”

4 “Moreover, CPR Part 3.17 makes it clear that costs budgets are to be important instruments for all case management decisions, so parties must appreciate that if they wish to take issue with another’s costs budget they should do so at the first CMC, when there is to be debate about the costs budgets. In this case the first CMC, and the process leading up to it, afforded each party a fair opportunity to make any submissions they might wish on each other’s costs budgets.”

This sets out the importance of: Negotiation of your costs budgets.

Costs debate that should take place at the CCMC.

The final Costs Management Order.

Approaching the new-look budgetsNo litigator should underestimate the importance of the negotiation of costs budgets. Detailed planning and appropriate resource should be allocated to this important step in the process.

At PIC we allocate our most experienced senior advocates to complete this task on behalf of clients. Tactically this step is crucial. The new budgeting rules coming into force on 6 April support this, as budgets on cases pleaded above £50,000 are now being served 21 days before CMC. This change from 7 days is to allow for proper negotiation to take place.

From statement 3 and 4 above the court of appeal sends a clear message that you must take the opportunity of the CMC to debate and challenge an opponent’s budgets.

At PIC we can see insurers and especially the NHSLA taking this lead to make budgeting hearings costs war zones. You must be prepared. Our advocates hold pre-CMC planning meetings with solicitor clients to ensure we achieve the best results.

The content of the final Costs Management Order has become key to future costs recovery. The comments within the CMO regarding proportionality and reasonableness of incurred and estimated costs will have significance on costs recovery on the standard basis. At PIC we strongly recommend that the CMO is checked and double checked to ensure it accurately reflects the judge’s comments during the CMC.

Many lawyers now understand the basics of the budgeting process. However true

tactical advantage can be obtained by litigation teams who understand the complexities of costs budgeting.

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By Teresa AitkenChairperson, PIC

A CHANGE OF HEART?

I

ARTICLE


“On 21 April 2016 PIC was fortunate enough to attend The Law Society’s civil litigation conference where Lord Justice Jackson delivered a lecture focusing on the new form bill of costs. Teresa Aitken reports on what appears to be

a more flexible new form.”needn’t rehearse the reasons why Jackson concluded that a new form bill of costs was required but it is important

to recognise that the appetite for a new form bill has been endorsed by the Judicial Executive Board.

As to criticism of proposed changes at the event, Jackson was in typically bullish mood; even challenging his detractors to challenge him face-to-face rather than await the safety of their keyboards at home!

FIGHTING THE CRITICSJackson remains convinced that the cost to firms of implementing J-codes will not be expensive, and that those with existing time recording software could make this compatible with J-codes ‘with a relatively small amount of changes and costs’.

Jackson was also defensive as to criticism of the J-codes. In combination with Alex Hutton QC (also present) Jackson was keen to move practitioners away from the term ‘J-codes’ and instead sought

to focus on ensuring firms implemented electronic time recording systems that followed the suggested J-codes; and only to the extent of the work that firm was doing.

Jackson sought to refer to the proposed model form as evidence that the new form bill would not be complicated in appearance (even if the background input and appearance of background running calculations still seems set to be very complicated).

A CHANGE OF HEART?Of most interest is Lord Justice Jackson’s view that flexibility in the new bill appears to be key.

Jackson suggests removal of references to the J-codes so that practitioner may prepare their bill by any means they choose, provided that the end result remains a bill in the new model format.

This represents some softening of position but was also used to

illustrate that those who do have software with

J-codes would be able to produce the model form bill more quickly.

It is perhaps this factor which also lead Jackson to raise the suggestion of fixing the costs

for preparing a bill of costs,

with one

suggestion being a fixed amount related to the allowed sum for the whole of bill of costs.

IMPLEMENTATIONA clear source of frustration to Lord Justice Jackson was the speed of implementation. The voluntary pilot for the new format bill of costs looks to remain voluntary for some time to come, with Jackson reluctantly suggesting that mandatory implementation should not take a hold until 1 October 2017, and even then where all work has been done on or after this date. One suspects the logic in suggesting such a date is to remove any excuses regarding planning for a new regime.

FIXED COSTSOne final point of interest I wanted to touch on is how this all relates to the threat of more fixed costs in civil litigation. Jackson seems convinced that the new formal bill of costs is not a waste of time and that if fixed costs are introduced in the multi-track, he considered ‘there will still be many bills of costs requiring detailed assessment’.

Break out discussions at the conference drew some comment from senior sources that the multi-track limit ought not to be set in excess of £100,000 for the purpose of a fixed costs ceiling. I suspect that would come as welcome relief to many firms against the threat of a £250,00 fixed costs limit.

For a copy of Lord Justice Jackson’s keynote address and proposed new form bill of costs please e-mail: [email protected]

ithout expecting any sympathy from the press and public, the lot of civil lawyers deserves a fair hearing in

the light of recent developments. The reasons for this statement have their origins in the latest utterings by the government and by the senior judiciary about controlling costs. To put matters into context, Sir Rupert Jackson’s report into civil costs was published six years ago and his recommendations are still being implemented. Cases in point are costs budgeting and most recently, the implementation of the ‘new’ electronic bill (more of which below).

However, before either of these have had any real chance to work, the Government has announced (per Health Minster Gummer) that it intends to impose fixed costs in clinical negligence cases worth less than £250,000 by 1 October 2016. Sir Rupert has recommended fixed costs in all multi-track claims up to £250,000 in his speech to the justice committee of the House of Commons on 23 February 2016. Finally, the Lord Chief Justice, Lord Thomas, has said that ‘we must start again on civil justice’ and that Sir Rupert’s proposal about fixed costs ‘ought to expand’.

Contrast that with another speech given by a judge who spends a significant part of his judicial day fixing costs budgets under CPR 3.12 et seq. Two days after the Thomas outpourings, Master Cook made a powerful and well-reasoned speech at a seminar hosted by 7 Bedford Row, in which he expressed his view that it was ‘profoundly worrying’ that the Government planned to impose fixed costs in clinical negligence cases as early as this October, even though public consultation (the Department of Health had indicated this would take place) has yet to materialise.

Giving examples all-too-familiar to costs judges on detailed assessments involving costs payable by the National

Health Service, Master Cook pointed to the manner in which the NHS drives up costs: by refusing to disclose documents; declining to respond promptly to claimants; failing to admit liability; opposing applications to make payments on account of costs; and, objecting to split trials.

The court attributed a new description, namely the “presumed indemnity principle”. It then considered the Applicant’s submissions that this was a case where it was ‘reasonably plain’ that the indemnity principle had been infringed on the basis of the charging rates adopted by the Government Legal Department when charging out its legal work to other departments.

The court considered the ‘nature of government’ using various judgments in Town Investments Ltd. And Others v. Department of the Environment [1978] AC 359.

In the judgment, the Upper Tribunal concluded that, although the Department makes charges to other government departments, there are a number of other costs which are not covered by the internal chargeable hourly rates adopted.

In addition there are other costs, in that HM Treasury and the Cabinet Office incur costs in providing ‘oversight, financing, advice and other services’. Such costs, if incurred in the private sector, would be included in a fee earner’s hourly rate, yet they do not form part of any charge made by the Department to other government departments.

Using a table of rates showing what one government department may charge to another is not the correct basis of assessment (paragraph 38) and the Town Investments’ decision shows that all figures in such a table are irrelevant. The costs being repaid are the government’s costs and not the sums of money being paid by one department to another.

In conclusion, the original order for costs was affirmed, Eastwood was followed and £200 per hour, the rate claimed by the Respondent, was not unreasonably high.

The Upper Tribunal also concluded that:

1. The Secretary of State for the Home Department is the nominal defendant in an immigration judicial review, but the party to the litigation is in truth the Government.

2. Even if the costs were to be calculated on the basis of the amounts of money the Secretary of State pays to the Government Legal Department, it would be wrong to confine the costs to the hourly rate for lawyers. That rate does not take into account factors that would have been taken into account if a charge was being made by a solicitor in private practice.

3. Because the successful party is the Crown, other general overhead costs of the Government Legal Department also fall for consideration and charge. It would be an impossible task to calculate precisely the costs attributable to the production of an Acknowledgment of Service.

As to the Jackson proposal for fixed costs in clinical negligence actions up to £250,000, Master Cook could not accept that these represent ‘low-value’ claims and that for the present, fixed costs should not extend beyond claims worth £50,000 without first engaging in proper scrutiny of the effects.


Civil Practitioners have only just started to level out after the impact of the Jackson Report, consolidation in the marketplace and the introduction of costs budgeting. As Colin Campbell, Kain Knight & Teresa Aitken, PIC explain, more radical proposals are set to generate further headaches for practitioners.

W

WHERE NEXT FOR CIVIL COSTS?

TOO RADICAL, TOO SOON?He said: “What I find particularly concerning is how the NHSLA’s concern over disproportionate costs in lower value claims – that is claims valued at £25,000 – has morphed into a proposal to fixed costs in cases up to £250,000.”

This also applied to Sir Rupert Jackson’s call for the widespread adoption of fixed costs:

“My own view, for what it is worth, is that if this change is to come about, it must apply to all civil litigation; it must be gradual. We must start by extending the low value Part 45 scheme to all claims, including the fast track; there should be gradual extensions of fixed costs from £25,000 to £50,000 to say £150,000 and such extensions should be made in the light of experience.”

“Suitable uplifts must be agreed in difficult and complex claims such as clinical negligence – possibly in conjunction with some form of accreditation scheme. Alternatively, there must be some flexibility in rates (judicially controlled in the difficult and complex cases) and there must be a robust and predictable mechanism to update rates paid to lawyers linked to actual costs… in the real world… unless fees are set at a level which make it economically viable to take on such claims, people will be denied representation.”

“In my opinion a period of calm is called for before more radical change. We do not have a system of justice that is worthy of the name unless people can get effective redress.”

(Out of interest, in the Jackson grid in which the proposed costs are set out, some striking figures appear. After all the hullabaloo about proportionality, in a claim worth £25,000, band 1 would permit the winner to recover £18,750 plus VAT and if one was to assume that the loser had spent an equivalent sum, the overall costs would be nearly double the amount in dispute.

At the other end of the scale, band 4, which covers cases worth £175,001 to £250,000, the allowance would be £70,250 plus VAT, so again, taking the loser’s costs into account, the overall cost would outweigh the amount in issue. That all said, the proposed figures have come in for much criticism, not least because no indication has been given about how they have been reached and they are also considered to be inadequate.)

The main complaint in relation to all three proposals is that in the aftermath of the Jackson Report, firms of solicitors, counsels’ chambers and even experts have had to take account of costs budgeting which has added another layer of costs to the overall expense of litigation. With the requirement in the multitrack to produce budgets for work to be taken prospectively after the first case management conference, how to record time has assumed a new degree of importance.

The Jackson concept is the use of J codes whereby the time spent by fee earners on a case is recorded electronically by reference to each phase, task and activity using appropriate J code. Thus at any moment in the case, it will be possible to print out a costs budget or a bill for detailed assessment without the need for what Sir Rupert described as ‘a Victorian Account Book,’ being his description of the traditional form of bill still in use.

IMPACT ON LITIGATORS On the one hand, the Jackson reforms are imposing requirements on lawyers to invest heavily in costs management systems for the purposes of costs budgeting and the production of electronic bills for detailed assessment in multitrack cases. On the other hand, there is the three-pronged demand from the Minister, Sir Rupert Jackson and the Lord Chief Justice for fixed costs to be imposed

in cases worth

up to £250,000 – starting with clinical negligence in a few months’ time. Will the trio pay any attention to Master Cook’s speech? With costs budgeting, J codes and the new bill scarcely out of the starting blocks, why the indecent haste to impose fixed costs before the outcome of Sir Rupert’s reforms become clear?

Those firms who are yet to make the investment in the J Codes software may be wise to ask ‘Is it worth it if fixed costs are just around the corner?’ In addition to Master Cook’s misgivings, the downside of being too hasty will likely be that: (1) meritorious cases will not be taken on because they cannot be completed for the fixed costs and if they are, the client will be jettisoned mid-claim and/or; (2) the client will stand to lose a sizeable chunk of his/her damages to meet the shortfall between the fixed costs and the actual cost and; (3) the service that the client receives will be all the poorer and there will be pressure to ‘settle low’ because the recoverable costs will not be sufficient to enable the solicitors to go on with the claim.

Another fine mess!


This article is taken from the March 2016 issue of the Costs Law Bulletin, the Editors of Costs Law Reports (published by Class Legal). You can sign up to receive the monthly Bulletin free by visiting www.costslawreports.co.uk

AN END TOBAD HABITS

continuously review what ATE Underwriters want to see in risk assessment procedures. The simple fact is that if your

insurance provider is happy then you will be able to continue to offer your clients the best ATE insurance products in the market.

Cases can have several fee earners during their lifetime. Sadly, if there is no written risk assessment or case plan, the case may drift in the hope it will turn out all right.

If the case loses or is discontinued, it is then difficult to see what changed where there is no evidence of the original assessment on prospects of success.

Back to BasicsWhen considering a claim for an unsuccessful case the ATE Underwriter goes back to basics. Did the cases have initial merits? Why have prospects reduced? If objective evidence can’t be seen it is more likely the claim will be turned down or the conduct of the lawyer will be questionable.

Even the best-prepared risk assessment cannot identify every twist or turn. If you have prepared a detailed checklist identifying the known pitfalls in a given accident type, there is a reduced margin for error.

ChecklistsYour checklists may include the following adverse risk factors:

Where claimants are reversing – 75% of these cases fail.

Claimants joining a major road from a minor road.

Pedestrians stepping out in front of vehicles.

Road rage attacks.

Deliberate acts (i.e. cars used as weapons).

Claims against pedestrians.

Public Liability e.g. accidents on private land:

Supermarkets/shops and garages. Where packaged or sealed goods

have smashed causing the contents to spill onto floor.

Water or liquid on the floor.

Such cases usually have reasonable prospects especially when there is objective evidence the spillage has been there for some time.

Contrast accidents where there has been a slip or trip:

On leaves or litter. On gravel. On ice or rainwater. On surfaces from fruit or loose produce.

Statistically such cases produce much higher failure rates and in many circumstances I see an adequate initial risk assessment.

I see no evidence to suggest Liability Insurers are taking a softer line on such cases following the introduction of QWOCS.

Lowering the RiskA major exposure to ATE insurers is from the cost of cases being discontinued pre proceedings. These claims are more prevalent in Employers Liability and Public Liability cases. ATE premiums have quite rightly reduced significantly following the recent funding changes, but there is less premium income to deal with increasing frequencies of claim.

How can you keep your ATE insurance provider happy?

Review your current risk assessment procedures (involve your ATE provider).

Implement constructive changes. Properly record your risk assessments. When a claim has to be made to your

ATE insurer take time to explain the reasons why.

Revisit your assessments and close cases down as early as possible.

Don’t rely on counsel alone, create a work ethic which encourages review and reappraisal of risk amongst your Fee Earners.

Budget your disbursement spend, have appropriate checks and balances to reduce your spend until you are confident all relevant facts and evidence are available confirming the merits of a case. Set appropriate work in progress limits on types of case.

Keep records of success and failure; liaise with your ATE provider who should be able to give the statistics/data to show whether you are the right side of the line.

By improving your risk assessment procedures, you will:

Reduce time-wasting. Improve underlying

profitability levels for your law firm.

Have a happy ATE insurance provider and maintain your relationship!


I

Risk assessments and an ‘eyes open’ approach to case management are key to both long-term relationships with your ATE insurance provider and help to increase profitability for your firm, as David Pipkin, Temple Legal Protection writes.

By David Pipkin, FCILEx,Director Underwriting Division, Temple Legal Protection Ltd

Assign with certainty


Following the Budana judgment earlier this year, there have been high profile fall-outs for law firms as the uncertainty of CFA Assignments takes hold. A roundtable of experts comprising of ZebraTD’s Technical Advisory Board, share their advice with Partners in Costs.

By ZebraTD Technical Advisory Board

he forever battered claimant PI industry has been plunged into further confusion over the past few

weeks thanks to LJ Jackson’s recent fixed fee proposals, forthcoming changes to NIHL calculations, reform to small claims and now, uncertainty and confusion over CFA Assignments.

“The law is in an unholy mess. The Court of Appeal needs to expedite the hearing of a cluster of cases,” says ZebraTD TAB member, Professor Regan.

In a sector that continues to consolidate, both via whole scale law firm purchase and file WIP acquisition, personal injury lawyers and funders have been watching this space closely.

Contrary to the rumours, the judgment held that the CFA assignment would have been valid if the original CFA not been ‘terminated’ by the Selling Firm. DJ Besford considered himself bound by Jenkins.

Budana: The WhatThe key factor in this was the letter sent by the selling firm to the client, which DJ Besford concluded terminated the original CFA.

“The judgment is demonstrative of the on-going uncertainty within the profession as to the assignment of CFAs,”

said Vicki Acres, Head of Technical & Risk Outsourcing, Zebra TD and Chair of the ZebraTD TAB.

“On the one hand the judgment lends weight to the view that CFAs are capable of assignment from one firm to another. In contrast to the decision in Jones v Spire Healthcare Ltd, DJ Besford considered himself bound by the ratio decidendi in Jenkins v Young Bros Transport [2006] EWHC 151 and expressly declined to distinguish that case on its facts. On the other, it is perhaps noteworthy that DJ Besford offers some sympathy for the defendant’s criticism of the correctness of the decision in Jenkins. Of course,

the Court of Appeal (to which this issue will inevitably be elevated) will not suffer from such constraints,” she explains.

“Aside from the question of whether a CFA might be capable of assignment, this judgment gives rise to questions as to the mechanism by which an effective assignment may be executed. The conclusion that the original firm of Solicitors ‘terminated’ the retainer prior to assignment is hugely fact specific but will concern many,” adds Zoe Holland, Managing Director, ZebraTD & ZebraLC

T


The Impact“There has always been an element of uncertainty as to whether it is possible to assign a CFA. That uncertainty has been compounded by a recent number of conflicting judgments as to whether a CFA is assignable in any circumstances; whether construction of the communication to the client constitutes a termination of the retainer in its entirety resulting in there being no retainer left in existence to assign or transfer; and whether transfer by consent to a successor practice constitutes a novation which falls foul of the rules in relation to the success fee, said Acres, adding: “The issue is of growing concern to many businesses operating within the personal injury sector as the value of WIP in pre-LASPO cases continues to accrue.”

Acres notes that: “The issue affects not only those businesses who have chosen to acquire other practices and/or their WIP books but also those businesses who have undergone a change of legal ownership or legal identify since April 2013 and who may not, at the time, have fully appreciated the significant impact this change has had upon their pre-LASPO CFAs.

“Defendants are raising an increased number of challenges to the validity of retainers; funders and lenders are becoming alive to the possible diminution in the value of the WIP

asset held by firms and, now we have heard of Courts deciding to stay assessment proceedings pending clarification of the issues by the Appeal Court. At the very least this is having a detrimental effect on cash flow for law firms.”

Professor Regan and other PI leaders on the ZebraTD TAB warn practitioners to ‘take extra care and seek specialist advice’.

“The Court of Appeal is inevitably going to have to look at this,” said Regan, continuing: “I think Sir Rupert would be very keen to uphold the validity of assignment.”

As the ZebraTD TAB reports, the law is quite clearly in a mess and there is no easy or clear solution to the problem.

“Any firm who suspects their WIP may be at risk as a result of CFA assignment/novation should seek early advice from their specialist costs adviser or specialist costs counsel,” Acres suggests.

The Advice1. Check the manner in which

the original firm advised the claimant of the transfer;

2. Ensure there is an appropriate ‘fallback’ retainer which is compliant with the law post-April 2013;

3. If in doubt, take specialist advice as soon as possible.

Claimant practitioners may find some comfort in the fact that subsequent ‘new-style’ CFA - contingent upon the failure of the assignment – was considered effective so as to ensure recovery of costs for work done post-transfer from the original firm to the new.

One might not be surprised if any appeal by either party was afforded the benefit of the ‘leap-frog’ procedure under CPR Part 52 so that the important issues to which this case gives rise might be considered by the Court of Appeal sooner rather than later.

Full advice and guidance is being shared live on the member-only ZebraTD PIKS hub by decision makers and experts in the PI industry. For further information, please visit: bit.ly/ZebraTDPIKSJoinIn

Members of the ZebraTD Technical Advisory Board aim to provide relevant feedback and urgent industry information for the 100+ decision-making members of the ZebraTD PIKS (Personal Injury Knowledge Share) Hub.

hatever the outcome of the latest proposed government reforms to personal injury may be, the one continuum

is the need for law firms to understand the risk exposure both they and their clients may be faced with when bringing a legal action.

There is some protection for clients through QUOCS, although there is still the underlying Part 36 risk. For law firms acting under a CFA, the pressure on cash flow appears to have reached an all-time high with the increase in court fees adding to already stretched budgets.

All of those involved in claimant personal injury work knew post LASPO would be a challenging environment and with further reforms being proposed, the impact on revenue will undoubtedly mean the need for even greater efficiencies.

What does greater efficiency mean for a law firm?To stay in the personal injury market, a firm needs to embark on a thorough journey of change – the extent of which

depends on the start point. Clearly a firm needs a greater range of capabilities, including:

Multi-skilled management team. Optimised scale: sufficient size or

specialised niche. Clear strategy. Skilled, engaged and motivated

workforce. Leadership, governance and

regulatory compliance. Customer proposition. Viable and cost effective routes

to market.

No great surprises there but what of that path to greater efficiency and effectiveness? Here a firm needs additional, sometimes new, capabilities:

Operational information: process understanding, workflow, available resources, etc.

Timely financial information. Risk management: managing the

cumulative risks now inherent in running a successful claimant law firm, from WIP lock up, spending

and budgetary control, case control, case profiling and fee earner management.

Improved data quality and Management Information (MI).

Better analytical skills.

All of the above needs to be designed to leverage greater insight, knowledge and understanding of how the business is performing.

This is the world I inhabit, the world of insurance and first class underwriting. I would suggest the appointment of your After the Event insurer should be a significant expert and enabler. Our world is all about:

a. Data capture and interrogation.

b. Profiling and financial modelling.

c. Triangulations to understand developments and model the future.

We use these skills to deliver MI in average case life cycle management, average success rates, average settlement value or indeed the average of every matter to hand!

Steve Rowley looks at how legal practices can juggle the need to boost efficiency, protect the balance sheet and transfer risk – even in a challenging climate.

BALANCING ACT


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Analyse thisYou might be wondering why we analyse performance in this way? Well ultimately it is a winning case that funds our respective businesses. A win is a win but a loss isn’t just the loss of an issued case; any case opened and then closed without generating revenue is a loss for a law firm or, in our world where only the winners pay the premium, we only earn revenue on winners.

Clearly there is an alignment of interest and our skills compliment what a progressive law firm is looking to achieve.

Collaboration with partners who have complementary skills is a key to success in our increasingly complex and demanding market. At the end of the day, collaboration with us is like putting quality oil in your engine rather than breaking down in the course of the journey!

For law firms who decide not to insure, they are potentially leaving their balance sheet exposed and whilst they may have means to manage cases in the short term, the very nature of long tail liability is that this money could well dry up, leaving the firm at risk.

However, backing the right ATE Insurer is as important as backing the right case, and ensuring that your ATE insurer has the necessary stability and proven expertise to support a firm through the lifecycle of a case.

To ensure law firms are providing best advice and deciding on the most appropriate ATE insurance facilities available in the market, there are a number of factors to consider, such as:

Does the insurer have a long-term commitment to the ATE market?

Does the insurer control its own capital and capacity? As well as being flexible to provide top up indemnity where required?

Does the insurer have the financial backing to meet its long-term commitments?

Is the insurer consistent in its pricing and is this underpinned by risk data?

Are the premiums really sustainable? If pricing looks to be too good to be true it probably is!

Is the policy wording clear, transparent and unambiguous?

Is the policy limit of indemnity really suitable?

What is its approach to claims handling and how much evidence will need to be provided to support a request for payment?

Under-protected, under fireAt Allianz Legal Protection, we’re starting to see pressures on insurance capacity which is leading to some ATE providers having a selective appetite for writing what I call ‘non-standard’ lines of personal injury work.

Selection against has often been and is still a concern for the ATE insurance market. This has intensified since the 2013 LASPO reforms as law firms have tried to understand where the risk actually is in a PI case. Many law firms are now carrying risk on their balance sheet which has undoubtedly created a whole raft of pressure on cash flow, opening up the flood gates for allegations of under-settling claims – where a whole new industry is now emerging.

While law firms should be appropriately protected by their Professional Indemnity Insurance (PII), if the claims for under settling increase, firms could begin to find even greater challenges when getting PII in the future as well as the potential reputational damage.

The selection issue however, is not restricted to law firms, ATE insurers themselves appear to be selecting which case types they will and won’t insure. This is often due to the limited capacity being provided by their underwriters because of a lack of data or experience. This means that only homogenous, volume based PI case types, such as RTA, Employers, Occupiers and Public liability ATE cover is being made available.

For more specialist case types, such as product liability or abuse and occupational disease, the availability of suitably priced cover appears to be limited.

Capacity to supportAt Allianz Legal Protection, as the underwriter of our own products, we don’t have such capacity issues due to our strong capital base. With longevity in the legal expenses market, we have the expertise and data to support our decision making and as such are able to consider a firm’s entire personal injury portfolio, taking on the more transactional work alongside specialist, non-standard case types.

We also have a flexible approach to cover, which enables the law firm to decide with their customer on the most appropriate level of cover depending on the case type and financial risk exposure. This makes sure that no matter how small the relevant risk is the client is appropriately covered through a fair and proportionate premium structure.

Our pre LASPO partners who appreciated the additional skills we bring to the relationship were able to prepare better for a post LASPO world; and our post LASPO partners are now realising the benefit of working with an insurer who can add operational, financial insight and aligned risk management with meeting their claims payment obligations.

Steve Rowley Business Development Manager,Allianz Legal Protection


By Sean Linley, Costs Consultant, PIC

nder the spotlight recently have been a number of decisions concerning the move from Legal Aid to a CFA.

Most recently the case of Yesil v Doncaster NHS Trust saw Irwin Mitchell denied the recovery of additional liabilities equating to over £105,000.00. The NHSLA have used high stakes rhetoric that they will continue to challenge this issue so should solicitors be concerned?

The truth of the matter is that there is no one answer. It is entirely dependent upon the specific facts of the case and is equally at the mercy of the court’s discretion.

THE CASE FORThe key issue is establishing the ‘reasonableness’ of switching from Legal Aid to a CFA. In AMH v The Scout Association, Master Leonard allowed the additional liabilities despite holding that the claimant’s solicitor had not provided enough information about the move.

Master Leonard used his discretion on the case and stated: “I am unable to accept that a choice must be unreasonable if it is not made on the best available information. I think one has to consider… whether the choice was reasonable in all the circumstances. It is… possible to make the right choice for, here, not so much the wrong reasons as an incomplete set of reasons.”

The switch was of benefit to the Claimant and was a reasonable decision. Additional liabilities were allowed.

It is clear that reasonableness has a pivotal role when dealing with funding issues. Solicitors would be wise to take every step available before switching from Legal Aid to a CFA.

THE CASE AGAINSTThere are a number of examples of successful challenges to the switch from Legal Aid to a CFA. In Arianna Ramos v Oxford University Hospitals NHS Foundation Trust it was contrary to the decision reached in AMH. Master Leonard held that as inadequate advice was given by the claimant’s solicitors as to the advantages and disadvantages of the methods of funding a reasonable choice could not be made. Additional liabilities were disallowed.

Irwin Mitchell has suffered the loss of substantial additional liabilities across multiple cases (AH v Lewisham Hospital NHS Trust, Surrey v Barnet & Chase Farm Hospitals NHS Trust and most recently Yesil v Doncaster & Bassetlaw Hospitals NHS Foundation Trust). Collectively these cases have seen costs of over £321,000.00 disallowed.

In each of these cases, the claimant’s solicitor failed to provide advice concerning Simmons v Castle. The Defendant argued that the claimant’s solicitor should have advised the claimant that by entering into a pre-April 2013 CFA, the claimant would be unable to obtain a 10% uplift on damages.

Master Campbell stated: “The Simmons v Castle point was a factor which might have tipped the balance of choice one way or the other had the claimant known about it.”

The failure to advise on this issue meant that the claimant could not make a reasonable decision.

LEGITIMACYThe conclusion to be drawn is that changing from Legal Aid to a CFA can legitimately be done.

Master Gordon-Saker in LXM v Mid Essex Hospital Services NHS Trust used the following test: “Was the CFA and the attendant ATE policy a reasonable choice for the claimant at that time having regard to all the circumstances?”

The difficulty for solicitors who find themselves in this situation is that it is not possible to retrospectively provide advice. Indeed, the idea of providing a retrospective witness statement by the claimant was dismissed in the AH case. If inadequate advice was given at the time the change in funding occurred then seek advice.

Inadequate advice alone does not mean you will lose additional liabilities. The case of AMH shows the claimant simply needs to demonstrate that the choice was reasonable even if it was based on flawed advice.

AH, however, provides a stark warning with Master Campbell direct in his criticism; “Where the whole [advice] is entirely incorrect, in my view whatever choice the client makes will be unreasonable”.

The lesson here is that you should always take your time with funding otherwise it can prove costly. Should there be any doubts or concerns then don’t be afraid to seek advice.

FUNDINGLESSONSJudgments regarding the move from Legal Aid to CFAs have already burned the fingers of Irwin Mitchell, leading to a number of PIC clients asking, ‘should we be concerned?’ Sean Linley replies.

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udges hope and pray that disputes will not reach a hearing. Indeed, the very purpose of Part 36 is to incentivise parties to put reasonable proposals on the table so that a deal will be done.

We now see formal recognition of this philosophy in the application of Part 36 offers on costs made in advance of a detailed assessment.

The definitive authority is Cashman v Essex NHS Trust (2015) EWHC 1312 (QB). In this case, C made an offer to take about £150,000. At the assessment months later the Senior Costs Judge awarded some £20,000 more but declined to grant the 10% uplift as it appeared punitive and would give the receiving party a bonus of £17,000.

On appeal, the High Court said that the uplift was intended to be punitive insofar as it was meant to hurt those who did not accept sensible offers. There was nothing in the conduct of C to make it unjust to award the full £17,000. Incidentally, the first sum claimed by C was about £100,000 more than the formal Part 36 proposal made. Note that the maximum uplift is capped at £75,000. So, a claimant who was prepared to walk away with £150,000 skipped off with £187,000. Not bad…

In my opinion, claimants are negligent if they fail to make Part 36 offers in the dispute itself. A good offer that goes unaccepted should generate an uplift of 10% on the first £500,000 awarded and 5% on the balance up to £1m.

In other words, a maximum £75,000 could be secured just for having filled in a Part 36 form of offer. Indemnity costs, coupled with generous interest on damages and costs, are also there for the taking. Ensure then that the one question on your internal pre-trial checklist is, ‘have I made a Part 36 offer?’

A defendant hell-bent upon fighting (perhaps to discourage other potential claims of a similar nature) might justifiably refuse to make any offers and could also reject alternative dispute resolution. That is the upshot of Halsey v Milton Keynes NHS Trust 2004. Our warning is that the defendant in that case had a cast iron defence. Many cases are not nearly so clear-cut and a defendant could be thrashed financially were it unreasonably to refuse ADR and if it ignored a sensible settlement proposal. The Halsey decision should be treated as exceptional.

By Professor Dominic Regan

‘Settlers bring express relief’, so goes the ancient advertisement for an indigestion tablet. The same sentiment is true of litigation today as ‘realistic’ Part 36 offers can create an invaluable deal and resolution for your clients, as Professor Dominic Regan, Tailored Development, writes.

Dealmakers

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here are increasing calls to move away from charging clients on an hourly rates basis. This has been borne out of a perception from many of those outside the legal profession that there is a

lack of transparency and control when it comes to legal costs.

This has resulted in legislative changes, driven by insurance companies with significant lobbying power and by the Government, with the aim of reducing the legal bill from the NHS and other government organisations.

However, it would be wrong to say that these calls have simply come from two entities that are so commonly footing the bill in legal cases. Large companies with a sizeable legal spend are constantly reviewing their legal panels, rarely for reasons of underperformance but more to review their legal spend.

FEE CERTAINTYThe introduction of budgeting has attempted to bring certainty to fees by setting fees within a range of reasonable and proportionate costs before they are allowed to spiral out of control. Courts have been at pains not to concern themselves with looking at hourly rates and the amount of time spent.

What is all too often overlooked is that the prescribed form for preparing Budgets requires you to calculate the amount claimed by reference to an hourly rate which makes for uncertainty within the Judiciary as to how to go about dealing with Budgets. In very basic terms, a lawyer’s most valuable commodities are their experience (which heavily influences the hourly rate) and their time. This begs the question then that if the Government and Judiciary do not want costs to be calculated via an hourly rate then how else can they be calculated?

AUTO-PILOTTechnology will also have a huge impact in the manner and amount that clients are charged. Although we don’t as yet have a confirmed date for when Skynet will be fully operational, it’s difficult to escape that huge strides are

being made here. Deloitte recently estimated that 114,000 jobs in the legal sector will become automated by 2036. This will no doubt reduce the amount of lawyer’s time required but, in turn, it will increase the need for lawyers with a broader skill set as a higher degree of legal project management is required.

Firms pitching for new work will still need to start by calculating the hourly rate X time calculations to ensure they remain profitable as time is a lawyer’s primary commodity. In these larger cases, internal budgets (if prepared properly and monitored through the case) can be extremely useful for both the law firm and client alike to ensure everyone has an adequate bottom line.

LOOKING AHEADIf the word on the grapevine is true, the introduction of fixed costs across all civil litigation is only a question of when not if it will happen. But what advocates of fixed costs do not appreciate is that you cannot simply fix how much a case is going to charge, then say that it will balance itself out in the long run.

Sir Rupert Jackson’s comparison with the German legal system is misguided due to the fact that ours is an adversarial one whilst theirs is a more co-operative (or perhaps ‘European’) inquisitorial system. In the former, you only need one party to cause costs to escalate and there is no fixed costs system in the world that can put in enough algorithms to accommodate for the unknowns. Any charging structure which does not account for this is destined to fail and is likely to have catastrophic consequences on the legal profession as a whole.

Regardless of the changes imposed, whether by market forces or through legislation, it is vital to remain flexible and to prepare forecasts early on so that your firm remains profitable and they do not price themselves out of the market with their competitors.

Joe Rose is a Cost Consultant at PIC

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JOE ROSE IS ON THE HUNT FOR THE ‘PERFECT’ CLIENT CHARGING SOLUTION

CHARGING BLINDLY ON?


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Basic Point of Principle impressed upon Maritime Law Maritime Law generally involves corporately-minded clients, legal teams of irreproachable repute and considerable sums of damages in dispute. It was therefore with interest that I witnessed the unfolding of an obscure dispute involving what is, in the Maritime Sector, a rather small issue involving $19,648.75 of costs; the outcome of which lay to rest any reservations one may mistakenly harbour as to some of the more basic principles in our own English legal system.

In this particular dispute (London Arbitration 7/16) a number of issues arose regarding the additional parties’ (the claimants) purported requirement to meet the owner’s costs of reference flowing from a tribunal.

The ScoreIt was the owner’s contention that his American lawyer’s fees of $19,648.75, incurred as a result of a Motion brought by the claimants in the United States, were recoverable from the claimants as they were ‘costs of and incidental to’ the proceedings before the Tribunal. Furthermore, the owner referenced Section 59(1)(c) of the Arbitration Act 1996 and the Tribunal’s discretion under the Act to make such an award for costs against the claimant; making the point that principles underpinning current costs rules applied by the High Court under the Civil Procedure Rules take precedence.

Upon considering arguments and case law namely; The Kos [2010] 1 Lloyd’s Rep 87 and cases referred to in that judgment, it was concluded the approach adopted by the High Court (embodying the principles laid down by the Civil Procedure Rules) provided the necessary guidance for arbitrators when determining costs issues but that such guidance did not necessarily apply to the various categories of costs recoverable within an Arbitration.

The Claimants made reference to CPR 44.1(2) and Section 51(1) of the Senior Courts Act 1981; pointing out that sub-paragraph (a) applied the relevant principles only in instances where costs ‘may be assessed by the Court’. The Tribunal then attempted to understand how CPR could claim, without justification, that the Court had a power to make decisions which were not in existence within the

Arbitration Act 1996. It appeared the 1996 Act regularly referred to ‘costs of the arbitration’ and not ‘costs of and incidental to’ the arbitration.

This caused some degree of doubt within the Tribunal as there was no clear guidance; when having regard to the fact they were not commissioned to concern themselves with the Court’s power under CPR 44ff and Section 51 of the Senior Courts Act 1981; as to their own power arising under the Arbitration Act 1996.

The OutcomeIt was therefore correctly identified that under the 1996 Act, the Tribunal was only capable of awarding costs of the arbitration and did not have the power to award incidental costs involved in the present dispute; with little doubt existing as to the Tribunal’s powers being capable of extension under such an Act.

The claimants rightly referred the arbitrator to Section 62(5)(b) of the 1996 Act and pointed out that any doubt as to whether the costs were reasonably incurred and reasonable in amount should be resolved in favour of the paying party.

In reaching its decisions and having considered the various submissions made between the parties, the Tribunal held that the owner’s American lawyer’s fees were not recoverable as costs in the present arbitration as there was reasonable doubt as to their recoverability.

As mentioned above; Maritime Law is big business involving some of the most respected of ‘High Rollers’ but despite the wealth of legal acumen afforded in this area of law, it took one of the most basic of legal principles to bring the matter to a grinding halt.

Sometimes; it’s not just who you know that is of consequence, but what you know; and on this occasion it was the basics that won through.

Ignore the basics at your peril or risk it all in Maritime Law, as John Plunkett explains


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DOMINIC REGAN TRAINING LTD IS PLEASED TO ANNOUNCE THAT IT HAS BECOME AN INDEPENDENT LEARNING PROVIDER. WE OFFER APPRENTICESHIPS IN LEGAL SERVICES, LEGAL/ BUSINESS ADMINISTRATION, AND CUSTOMER SERVICE.At Dominic Regan Training Ltd, we deliver high quality workplace vocational training and learning and skills development. We offer a full range of sector specific government-funded apprenticeships for the law and business sectors. In the legal sector, this top-up or professional development is an alternative to the more traditional academic training.

Dominic Regan Training Ltd works closely with national industry sector standard bodies which, with a focus on regional and local priorities, reflect government strategies for continuing development of the professional workforce. Our training programmes are bespoke and tailor-made to suit employee and employer professional development needs.

As sector specialists, we understand law and business professional development training. We are well-placed to deliver best-in-class apprenticeships which incorporate all of the technical and professional skills and the underpinning theoretical knowledge which is now required for employees to realise their full potential.

Our team of professional learning and skills educationalists are all practitioners in either law or business. The team is led by some of the leading specialists in the country including Professor Dominic Regan, who is a national professional practitioner and keynote speaker in the law sector.

We work closely with our partners, East Midlands Chamber of Commerce and Kaplan, to bring a suite of professional apprenticeships at Level 2 and 3 in legal administration, business administration, team leading and customer services and Level 3 and higher qualifications in legal services, business administration and management.

Our team are nationally recognised in the law, business and management sectors both at strategic and operational levels, working with organisations across England, Wales and internationally to provide first class education, learning, skills and training in the commercial, public and private sectors. Our director Maureen Deary specialises in quality improvement consultancy and implanting successful strategic and operational cost efficient strategy and frameworks, is an national inspector inspecting all types of education, learning and skills in the private and public sectors across England and in Wales and has over thirty years in the schools, further higher education, workplace learning and commercial sectors and works with both government funded and privately funded contracts. Nigel Tomlinson is an international strategic adviser, consultant and trainer who works globally with significant experience of working with governments and international Chambers of Commerce. Simon Cohl is a trained lawyer and senior lecturer with over twenty years experience of education, learning and skills in the higher, further education and workplace learning employer led sector. Paul Haywood works in cost law and is an experienced assessor in administration, management and customer services.

As a team, our experience is high level, high quality but personable and supportive to help your workforce develop improved professional expertise, knowledge and services in your sector, who through our personalised and high standards of education, learning, skills, development and training will contribute more effectively to increased cost effectiveness and improve the quality of your services in your business.

For further information please go to

PROFESSIONAL DEVELOPMENT, TRAINING AND LEARNING AND SKILLS INCLUDING APPRENTICESHIPS

0333 014 [email protected]

You can also contact; Nigel Tomlinson MBA, BA (Hons), MIEx, CM on 07768 415023.


Partners In Cost | Autumn Newsletter | 23

he idea behind engaging in civil litigation is predicated on the principle that, through the litigation a claimant should be put back into the position they would have been in but for the

defendant’s actions or conduct.

As we are all aware, the Government has sought to impose increasingly stringent controls on litigation costs in certain types of cases in order to prevent them from spiralling out of proportion. However, taking the example of boundary disputes – wherein the costs controls applied to personal injury cases do not apply – even a successful claimant can find that success is a pyrrhic victory in the most literal sense.

It is vital therefore that when advising clients embarking on litigation over a boundary dispute, that advice is taken from a costs professional at the outset in order to provide an on-going assessment of how the costs of the case are progressing and indeed, how to ensure that the costs of the action do not nullify that action.

Spiralling Out of Control The importance of on-going costs management, of obtaining costs advice at the outset of such cases and revisiting the issue throughout the litigation, is well illustrated by the 2014 Court of appeal Case in Rashid & Anor v Sharif & Anor.

This dispute arose over two issues: (1) whether the defendant’s building a shed at the meeting point between the parties’ gardens constituted a trespass and (2); if so, whether the Defendant should be ordered to demolish the north wall of their shed.

At first instance the Court found in the claimant’s favour and ordered the demolition. The defendant appealed. The Court of Appeal upheld the finding of trespass, however in a much more modest state. Given the trespass constituted a mere 22.5 centimetres, the Injunction was overturned in favour of a damages award of £300.

Ambiguous SuccessFrom our perspective the most interesting aspect of this case is the finding in relation to costs. The claimant’s case was only modestly successful. The defendant’s appeal was only in part successful. Neither party had attempted to negotiate in any meaningful way. Therefore, the finding was no order as to costs.

Needless to say, both parties had accrued significant costs in relation to the action over the disputed land. Had one or both parties consulted with costs lawyers during the case, caution would have been advised.

Had both parties consulted with a costs professional, the outcome may have been different. A costs professional could have advised the parties as to the potential outcome from a costs perspective and a process of on-going costs management might have been instituted. Instead the parties, and more importantly perhaps, their legal advisors ploughed on with the litigation in which the costs became increasingly prohibitive.

Continued costs management may have seen the parties negotiate an amicable outcome and seen a resolution to the issue without having to burden themselves with a significant bill to their solicitors.

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CONTROL BOUNDARIES


As clients judge the success of a case on both the justice and financial outcomes, the fact that some litigation claims are less costs bound than others is irrelevant. As Alex Taylor, PIC writes, escalating costs in boundary disputes have the potential to leave a bitter taste in clients’ mouths, even if they technically ‘win’.

By Alex Taylor, FCILEx, Associate at PIC

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A DAY IN THE LIFE OF A

COSTS CONSULTANT

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TELL US A LITTLE ABOUT WHO YOU ARE AND WHAT YOU DO?

As a Costs Consultant at PIC, my day-to-day activities include preparing budgets and bills of costs for the claimant and offering various advices as to the recovery of costs in a particular matter – for whichever client I may be working for.

WHAT DOES YOUR AVERAGE DAY LOOK LIKE?

My average day starts a little early (for some); I’m up at 5.30am and it’s off to the gym to get a workout before starting my working day at PIC. My day in the office usually starts around 8.30am with a fairly strong coffee to stoke the fires!

I will spend the morning catching up on any legal developments and news pertinent to my role and our clients. I’ll then start to follow up third party sources by phone and email for information required for any document I’m working on.

My day will also involve working through a variety of client papers, be it in preparing a budget, bill or advice and responding to any specific queries that are received from clients or internally.

At the end of the day, when the computer finally shuts down, it is off home, to walk my dog, relax and prepare some food!

WHAT IS THE MOST IMPORTANT ASPECT OF YOUR ROLE?

Ensuring that documents prepared for the client are accurate, enabling the best possible recovery of costs. That advice given to the client is accurate, honest and provides them with a clear understanding as to risk and costs recovery in the matter at hand.

We asked Matthew Beech, Costs Consultant at PIC, to joins us for a coffee and tell us about his role, his achievements to date and how he supports his clients.

WHAT DO YOU MOST ENJOY?

Working across a variety of challenging files, from Professional Negligence, to high value Clinical Negligence, and Catastrophic Personal Injury.

WHAT HAS BEEN YOUR CAREER HIGHLIGHT TO DATE AT PIC?

I started at PIC as a trainee so I would say that the 10-month journey to where I am now is undoubtedly a massive highlight for me personally. I hope it’s also a highlight for PIC as it’s really testament to its costs law training system.

IF YOU WEREN’T IN YOUR CURRENT ROLE, WHAT WOULD YOUR DREAM JOB BE?

Captain of England Rugby Union team.

ANY ADVICE FOR ANY BUDDING LAW COSTS DRAFTSMAN?

Think quality over quantity. Your client will appreciate greater accuracy and detail in a Bill of Costs, enabling them to recover a great proportion of costs. Do not be afraid to ask questions (stupid as they may seem to you, there are no such things as stupid questions).

Always pay attention to case law and other legal developments, such as changes to the CPR, to keep your knowledge up to date – helping you to offer more extensive and more valuable advice to your client.

CHARITY SPOTLIGHT

Today three people will learn that they may never walk again. That’s why Back Up, a leading spinal cord injury charity, provides vital services to help people after a devastating injury.

The charity was founded by Mike Nemesvary, a skier and James Bond, a stuntman who broke his neck while training. In 1986, he set up the charity to help other people in his situation to get back to skiing post-injury.

30 years on, Back Up’s services have expanded to meet the needs of all people affected by spinal cord injury. Its wheelchair skills training, mentoring and wide range of residential courses help people of all ages, injury levels and their families to rebuild confidence and independence. It is the only UK charity to focus on the psychological impact of spinal cord injury and provide specific services for children and young people.

Back Up has an exciting calendar of fundraising events that attract healthcare professionals, people with spinal cord injury and professionals from the legal sector.

Back Up’s annual Dragon Boat Race is taking place at London Docklands in the evening of 8 September. The competition is fierce, with awards going to the fastest team, the highest fundraisers and the individual who wins Back Up’s wheelchair skills. We also put on a BBQ. To register your interest for the event, please contact Sean on [email protected] or call 020 8875 6747.

The Back Up Ball will return on Saturday 5 November 2016 at Birmingham’s Hilton Metropole Hotel. It promises to be a great event celebrating Back Up’s 30th Anniversary. This event is a fantastic opportunity for supporters to celebrate a successful year for Back Up with fancy dress, awards, an auction and live music. Please contact Jo on [email protected] or call 020 8875 6722 to find out more.


By supporting these events, you

will be helping Back Up improve

the lives of hundreds of people

with spinal cord injury this year.

BACK UP backuptrust.org.uk

Out &AboutCBIT WINE TASTING EVENT 2016PIC was delighted to attend the Child Brain Injury Trust Wine Tasting Fundraiser on 9 March 2016, heavily supported by professionals in the claimant personal injury sector.

Reuben Glynn and Teresa Aitken and other PIC costs specialists joined the CBIT event in Manchester. The event officially opened the charity’s annual conference, hosted on the 10 March at the Etihad Stadium. CBIT’s Manchester Fundraising Group organised this fantastic event filled with wines from around the world.

The event was sponsored by Barclays Wealth, Kings Chambers and JMW Solicitors.

For more information on CBIT please visit childbraininjurytrust.org.uk/

For further information on the CBIT Manchester Fundraising Group, please contact Emily Honey via [email protected]

26 | Partners In Costs | Winter Newsletter

ASDAASDA has provided me with the two best bargains of the last year. It has a Silver Medal Champagne for £10 that is the equal of a big name brand costing £30.

Better still, the El Meson 2005 red Rioja at £9 blows away the competition. It won the very highest accolade in the International Wine Challenge; the Trophy award. Dead right! Smooth vanilla and gentle oak combine to produce a wine you would happily serve at your wedding; it is a stunner and I bought my bottle very recently as I did the Champagne so they are both available.

Even cheaper is ASDA’s Spanish Cigale red at £5.97. Luscious and tasting like a posh one with a gorgeous, colourful label too.

Lots of bottles now have shiny stickers attached to them. The ones to look out for are awards from ‘Decanter’ and the IWC I mentioned above. Frankly, I only get excited by Gold or Trophy levels; a mere bronze carries no weight in my opinion. Also, ensure that an award relates to that bottle. A label saying ‘best producer’ does not indicate that the bottle in your hand is representative of that accolade.

ALDIApparently, more Prosecco is being bought than ever before. Sadly, some is filthy. The very best at a fair price is the Tesco

Finest look for the revered name Bisol on the label. It is just £8. Some wine merchants

sell Bisol for nearly double. Both Aldi Champagne at £10 and its £7 French

Blanquette sparkling are also acceptable.

MARKS & SPENCERIn my last column I mentioned my surprise at Marks and Spencer. Some great bottles can be bought and at fair prices. It constantly has deals on as well. On my last shop I found an Italian white halved from £10. By buying a mixed case of six I secured another 25% off and so it cost me £3.75. Real value! Both the white 2014 Macon Village and red Bordeaux Solliard are serious. The Gillet red from Bordeaux at £8 is impressive too.

M&S has got adventurous as its Cabernet from Chile, Casa de Colores, proves. It stocks both the white and pink fizz made by Graham Beck, a serious producer in South Africa. Beck makes his wine in the classical manner and it shows. At £13 this is a clever alternative to official Champagne.

SAINSBURY’SThe safest bets at Sainsbury’s remain the Limoux Chardonnay at £8 and, madly, the Romanian Pinot Noir at £4.79. I was recently given a glass of French Pinot from a £32 bottle – I have to be honest, the Sainsbury’s one was superior!


Supermarkets almost always do deals over Bank Holiday weekends so be alert throughout May. Bottoms up!

Bargain Bottles By Professor Dominic Regan

BottlesBargain

Stock up for summer with these great supermarket offerings, to be had right now!


Geoff, 55, asks, “What do you think about recent comments that hearings could be conducted in public houses?”

As long as it was conducted much as one might hear confession; with a sturdy length of wood between myself and the plebs; one considers it a marvellous idea. Wheel the masses in, listen to their barely educated warblings whilst quaffing a Massandra 1775; regale them with one’s vast experience and measured judgment and send them on their merry way back to whatever grubby hovel they crawled out from. One accepts the hearings will take longer and may require the involvement of the constabulary but when one is enjoying a 1775 and a Louixs one is happy to allow matters to take as long as they need.

Carol, 29, asks, “What’s your take on assigning CFAs and the draconian outcome of recent cases?”

Frankly one finds the concept of purchasing claims to be abhorrent and offensive. One finds oneself perturbed by the efforts by some of the novus homo’s amongst the judiciary to preserve the efforts by some of the more salubrious members of the profession to profit at the expense of their less skilled colleagues. It rather reminds one of dung beetles locking horns over a turd. However to answer your question one’s colleagues can do nothing but follow the law; however the root of the problem can be found in two abominable words that should be struck from the legal lexicon: indemnity principle.

Daniel, 24, asks, “There are efforts to integrate the judiciary and Court service with modern IT systems; do you think these will benefit justice?”

Whilst one would hardly demand each Judge wield an abacus, one does find the recent reliance on technology by politicians, those men and women who were never wise enough to excel at the bar but sufficiently smart to secure a role being paid to do nothing useful, as a means to salvage the judicial system as little more than an empty promise aimed at confusing the proles. However, whilst one objects to typing as it is a menial chore and one only has two working fingers up to the task; as long as those stalwart gentlemen at the MOJ provide one with a secretary in a short skirt and heels; then one considers it a fine idea. Yet, whilst one steers aware from politics much as

one might step around a poor person in the street; one would venture to guess that a personal computer in a Trial would be as welcome as a wing collars at a funeral.

Alex, 40, “The latest rules require us to have our costs draftsman split the bill into one part for each budget phase. Do you foresee any problems with this?”

One must confess that one had to check whether this question was written in a foreign language. Having consulted a very dear, albeit infirm, acquaintance with an interest in costs he has explained to me what it is you mean. One can see a veritable ocean of problems. One abhors the wrangling over pounds, shillings and pence but even I, at breakfast, can foresee the difficulties in this recent ill-thought-out cork that has been wedged into the leaking ship of HMS Jackson. When one had to do one’s bit and undertake the onerous task of taxation it was enough to see a Bill in a single Part. Now a Judge will need to read though, what, a Bill in 10, 20, 40 Parts! Lord forbid there are interim statute bills, LASPO, VAT! Taxation was never intended to be as vexatious a task as it is likely to become and having been recently informed that my brethren have less than one hour to deal with a “paper” taxation one cannot see anything other than appeals, arguments, delay and an absence of justice. No, this latest amendment to the CPR may be well intentioned but it is, once more, the shambolic reaction of an MOJ amending the rules without giving the matter proper thought or due consideration. Sadly one often feels like our current paymasters are little more than babies who whilst trying valiantly to feed themselves, simply end up with food all over their faces.

Daniel, 57, asks, “Proportionality and budgets; how would you do it?”

One would not as proportionality is intangible poppycock. Having read the relevant rules in advance of this response one finds oneself wondering how anyone can possibly apply many of these at such an early stage. Clearly in order to determine proportionality one requires hindsight; but how can one acquire hindsight before the wheels of the case have begun properly spinning. The whole thing is a sham. If you place your budget in front of me I would treat it as I would treat my wife; with a firm hand, calm restraint and the occasional roll of my eyes.

YOU ASK…THE RT. HONOURABLE JUDGE SMYTH-JUDGE

“55 YEARS AT THE BAR AND NEVER A DROP SPILT.”

If you would like to ask The Rt. Honourable Judge Smyth-Judge a burning question in our next issue of Partners In Costs, please send an email to [email protected]!

RETIRED

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