No win, no fee; no stork, no baby

Evidence from Berlin shows a clear correlation between the human birth rate and the stork population, thus proving that storks bring babies. Or is this faulty logic?

I wonder if we can find some other examples. Step forward the Access to Justice Action Group (AJAG) and the Association of Personal Injury Lawyers (APIL). Here are a few extracts from their recent press release following their “independent research” on Jackson implementation:

“Independent research … highlights the importance of ‘no win, no fee’ agreements to the general public, and throws a direct challenge to the Government’s proposed legislation to reduce access to justice by dramatically restricting ‘no win, no fee’ agreements.

The research … calculates that almost three million people have used this method to make a legal claim in the last five years. The vast majority of those are people suffering from personal injury.

Proposed restrictions to ‘no win no fee’ will mean the facility will cease to be an option for many claimants, and the research reveals that, due to their income, most won’t be able to fund their claims any other way”

Denise Kitchener, chief executive of APIL, was quoted:

“Under the Government proposals for ‘no win, no fee’ a huge number of people will lose their right to the compensation to which they are entitled, and which they need and deserve, as they will not be able to afford the legal help they need to bring a claim.”

It’s the staggering lack of any logical connection between the research undertaken and the conclusion reached that really takes the biscuit.

We can only assume that this press release is targeted at those who do not understand the current system and are unaware of the Government’s proposals.

The research shows that a lot of people have brought personal injury claims using ‘no win, no fee’ agreements. The research shows that many of them are on relatively low incomes. The “won’t be able to fund their claims any other way” means that they could not pay their solicitors’ ordinary fees in the event a claim was lost.

‘No win, no fee’ agreements are not about to be banned. In future, a successful claimant will pay any success fee out of their damages rather than the unsuccessful defendant. There was no research into what this would mean, if anything, for the number of claims brought. I just hope APIL members present their clients’ personal injury claims somewhat more convincingly then they are presenting the anti-Jackson case.

A wee bit of common sense

Comment appearing on Linkedin discussion forum concerning Jackson implementation:

“As a scots lawyer I am reluctant to intrude upon private grief but we have never had CFA’s in Scotland nor recoverable ATE premiums and the world has so far as I am aware from the increasing volume of claims from Scottish claimant solicitors, not yet come to an end.”

Costs in infant approval hearings

Lisa Wright, barrister at 4 King’s Bench Walk, recently wrote a couple of interesting articles in the New Law Journal (18 February 2011 and 15 & 22 April 2001) on costs in RTA infant approval hearings.

The second article dealt with costs under the new fixed costs regime under CPR 45.27 to 45.40. The article, when considering hearings to assess damages, stated:

“Where the defendant is ordered to pay the claimant’s stage 3 costs, the court can order the stage 1 and stage 2 costs to be paid. CPR 45.38 does not provide for this, however, it is presumed that the court can make such an order given that in adult claims, such costs are paid at the end of each stage (paras 6.18 and 7.61 of the Protocol).”

The fact that CPR 45.38 “does not provide for this” picks up on the point I identified when the draft rules were first released (see New RTA scheme rules and win a bottle of champagne). Given the rules were introduced back on 30 April 2010, would it not make more sense for the rules to be updated to fill this lacuna rather than expect judges to have to make it up as they go along?

Discretionary rights of audience?

The debate as to whether non-Costs Lawyer costs draftsmen can appear before the courts on detailed assessment continues to rumble on. Although a further detailed analysis of this issue will have to wait for another day, I will briefly pick-up on some observations recently made in an article in Costs Lawyer magazine on the subject.

This reviewed a recent judgment from His Honour Judge Holman in Bank of Scotland v Whiteside (16 February 2011). The issue in that case was whether the court should grant a debt collection agency, which was not a firm of solicitors, the right to conduct litigation. That judgment also considered the earlier Court of Appeal decision of Clarkson v Gilbert [2000] 2 FLR 839. In that case the issue was whether it was appropriate to grant the claimant’s husband, who was not a qualified lawyer, rights of audience in relation to the claimant’s case. The court determined that it should only exercise its discretion to permit him to act if there was a ‘good reason’.

Judge Holman had noted: “Perhaps most significantly, the right to conduct litigation will only be granted in exceptional circumstances to those who are acting for reward”.

Interesting though this decision is, I would suggest it has no direct relevance to the issue of costs draftsmen’s rights of audience.

The Bank of Scotland and the Clarkson cases were dealing with the question of whether the court should exercise its discretion to grant rights of audience or rights to conduct litigation to those who otherwise did not have them. That was an issue of discretion and the conclusion was that the court would be slow to exercise such discretion in favour of the unauthorised company or individual.

In relation to detailed assessment hearings, the position was previously governed by section 27 of the Courts and Legal Services Act 1990. Law costs draftsmen, not otherwise having rights of audience, were permitted to appear by virtue of falling within s27(2)(e):

“where –

(i) he is employed (whether wholly or in part) or is otherwise engaged to assist in the conduct of litigation and is doing so under instructions given (either generally or in relation to the proceedings) by a qualified litigator; and

(ii) the proceedings are being heard in chambers in the High Court or a county court and are not reserved family proceedings.”

The matter is now governed by the Legal Services Act 2007 and non-Costs Lawyer costs draftsmen are permitted to appear by virtue of being ‘Except Persons’. Paragraph 1(7) of Schedule 3 defines ‘Exempt Persons’:

“The person is exempt if -

(a) the person is an individual whose work includes assisting in the conduct of litigation,

(b) the person is assisting in the conduct of litigation -

(i) under instructions given (either generally or in relation to the proceedings) by an individual to whom sub-paragraph (8) applies, and

(ii) under the supervision of that individual, and

(c) the proceedings are being heard in chambers in the High Court or a county court and are not reserved family proceedings.”

Under both acts the costs draftsman was and is entitled to act by virtue of being properly instructed by a solicitor in relation to a hearing in chambers. There is no question of the court exercising its discretion one way or the other. The ‘right’ to appear is automatic if the conditions are met. This contrasts entirely with the position in Bank of Scotland and Clarkson where there was no instructing solicitor. An unrepresented claimant was seeking to have an unauthorised company or person exercise restricted rights.  In that situation the court’s discretion came into play.

A costs draftsman acting for a litigant-in-person would equally have no ‘right’ to appear and would have to ask the court to exercise its discretion.  It is very probable that persmission would not be given.

Of course, none of this answers the question as to whether rights of audience in detailed assessment hearings should be limited to Costs Lawyers. But, as the law stands, no such restriction applies.

Costs draftsmen romance

Jennifer James writing in the New Law Journal on love and the law:

“Work colleagues who get together in what they alone believe to be a secret affair (while everyone else is placing bets on how it will end) are just one example; barristers and/or solicitors becoming entangled, sometimes literally, with experts, clients and (less often) costs draftsmen, are another.”

“Less often”. Speak for yourself love.


Hourly rates for libel lawyers

Geoffrey Bindman, ex-lawyer for Private Eye, writing in New Law Journal:

“My initial inexperience of libel law did not prove a disadvantage. Nor – contrary to the belief encouraged by a coterie of specialist libel lawyers who have built up a lucrative cottage industry – was it a difficult area of law. The key skill is negotiation, which is distinct from specialised knowledge of the subject.”

Unless evidence can be produced of higher overheads, no more than Guideline Hourly Rates appropriate for this type of work then?

Quality law costs draftsmen

Jon Robins had a recent piece in the New Law Journal discussing how deregulation will affect the legal services market.

This examined how consumers choose between providers of legal services and the concept of quality. The article quoted from some comments taken from a recent report by the Legal Services Consumer Panel (Quality in Legal Services, November 2010) including:

Consumer B: “They’re all solicitors and qualified to a similar level, and so it doesn’t matter whether they’re charging you £200 or £800.”

Consumer C: “We put ourselves in their hands and because they’re qualified and they’re professionals, we just hope and presume that they’re going to give us the right information and do the job for us.”

The article commented:

As the researchers noted the search for quality did not strongly influence consumers’ choice of lawyer. “This is bad for competition as it means that good-quality firms are not differentiating themselves from poorer quality rivals,” they concluded; adding that it could lead to “an excessive focus on reducing price” to a level where quality was compromised.

In relation to the issue of various quality marks, Robins concluded:

But if—as consumers B and C imply—people assume all lawyers are competent, then why would they look for quality marks anyway?

Similar problems seem to exist when choosing amongst law costs draftsmen. It is understandable that members of the public might struggle to distinguish between the good, bad and indifferent in the event they need to instruct a costs draftsman. However, surely solicitors and insurers are much more sophisticated when making this decision. Well, all those who work in the legal costs field will be well aware that quality is in short supply and some firms and individuals are much more successful than any measure of “quality” would seem to justify.

How should a solicitor or insurer measure “quality” in a law costs draftsman or Costs Lawyer?

Free costs seminar

John Foy QC, of 9 Gough Square, and Dominic Regan are giving a free one hour seminar on Costs and Jackson at 5.30pm on 17th May 2011 in London. Rather short notice but apparently they still have some free spaces. Email Andrew Grosvenor: if you are interested.

Proportionate bill of costs?

Dominic Regan’s blog summarising Motto & Ors v Trafigura Ltd & Anor [2011] EWHC 90201 (Costs):

“£107,707,772.72 – That was the amount of the bill presented by Leigh Day to the defendants in the Trafigura pollution injury claims where it was ultimately accepted that most claimants had flu like symptoms. … Please do not mention this case to Sir Rupert Jackson; I fear the poor man would implode.”

Proportionality anyone? Don’t make me laugh. You’ll make my sides hurt. And where there’s blame, there’s a claim.

Despite the valiant efforts of those representing the claimants, Master Hurst held: “I have no hesitation in saying that the base costs, excluding additional liabilities, have the appearance of being disproportionate.”