Civil Costs: Law and Practice

On Monday advanced copies of the second edition of Mark Friston’s Civil Costs: Law and Practice were available for sale on Amazon and the book was 203,469 in the Bestsellers list.

Yesterday I made a brief mention that Amazon were selling it at a discounted price and by the afternoon it had jumped to number 951 in the Bestsellers list and number 3 in the Law Bestsellers list (and the other two books aren’t legal text books).

Readers of the Legal Costs Blog know a good thing when they see it.

Civil Costs: Law and Practice – Second Edition – Latest news

Word reaches me that the second edition of Mark Friston’s Civil Costs: Law and Practice has been finalised and is now being proofed and indexed for publication shortly.

For complicated reasons that I won’t trouble you with it appears Amazon’s algorithms are currently listing this for pre-order at a ridiculously discounted price. At the time of writing this was £64.60. Consider how this compares to the price of the nearest “rival” publication. The price is not going to stay this low and at Gibbs Wyatt Stone we’ve already ordered multiple copies.

Don’t come crying to me if you hold off now and then have to pay a higher price.

Dockerill v Tullett

After the disappointing decision in Simcoe v Jacuzzi UK Group plc [2012] EWCA Civ 137 we now have some good news for defendants and insurers.

How should the courts approach a detailed assessment hearing where the case concerns a child, damages for personal injury are agreed at no more than £1,000 and the matter proceeds just in relation to an infant approval hearing? Because the matter settles pre-proceedings it will not have been allocated to the small claims track, as would be normal for a claim of this value. Part 8 proceedings for infant approval hearings are treated as being allocated to the multi-track. Can the claimant recover costs on the standard basis? No, said the Court of Appeal in Dockerill v Tullett [2012] EWCA Civ 184 (heard with the linked appeals of Macefield v Bakos and Tubridy v Sarwar). Although the Court should not simply impose small claims track costs, it should exercise scrutiny when deciding what legal involvement was required. In reality, this will usually mean limiting the legal fees to the costs of an advice on quantum (all that is required for an infant approval hearing). Any other solicitors’/barristers’ fees are likely to be disallowed.

What about the situation where a matter falls into the predictable costs regime for RTAs? The rules allow for recovery of counsel’s fees where they have been “necessarily incurred”. The Court ruled that the costs of counsel providing the written advice for the approval hearing will normally be recoverable but the costs of counsel attending the approval hearing will not normally be allowed.

These decisions will produce significant savings for defendants and insurers and provide long awaited certainty for law costs draftsmen and costs lawyers.

I note that costs counsel Roger Mallalieu appeared for the successful claimants in Simcoe. He appeared for the successful defendants in these cases. Roger is clearly on a bit of a roll.

In forma pauperis

I mentioned in a post the other day how legal aid was not introduced in this country until 1949. Although technically correct, I made the mistake of commenting on the subject of legal aid without first consulting with legal aid expert Murray Heining.

He advises that this is what the Costs Lawyer training materials have to say on the subject:

In forma pauperis

In 1488 the first legislation providing for Legal Aid was introduced in Scotland. Legislation in England followed 7 years later with the Poor Persons Act (11 Hen.7, C12). By this Act:

• the poor were not charged fees on the issue of writs;
• clerks, counsel and attorneys were assigned to prepare writs on their behalf without charge; and
• for hearings of writs counsel were assigned to act without charge.

In 1531 a statute (Hen. 8, C15) was introduced removing the liability of poor persons for the costs of a successful opponent. However, courts could order their punishment for non-payment of costs. This could and did include corporal punishment and imprisonment. The act was repealed in the 19th Century. Throughout the 19th Century substantially the only official assistance given to the poor man to help his access to the civil courts was by an in forma pauperis procedure and only in the superior courts. The Civil Procedure Act 1883 and accompanying rules made provision for Legal Aid to be granted by courts. In the early 20th Century a poor persons’ procedure was introduced by the Rules of the Supreme Court (Poor Persons) 1913 and was extended by the Rules of the Supreme Court (Poor Persons) 1914. These rules were amended from time to time. They enabled the poor to obtain the free services of solicitors and counsel in the High Court. The rules did not extend to the county courts and did not cover civil cases in magistrates’ courts. (Even with the introduction of Legal Aid proper in 1949 there was until 1960 only limited Legal Aid for appeals to the House of Lords by the Appeal (Forma Pauperis Act 1893). Although pro bono services were provided by some solicitors and counsel it was very difficult for the poor to find solicitors willing to provide legal assistance. There were “poor man’s” organisations providing legal services. These were mainly in London and in the major cities. The ability to access a solicitor or barrister was much restricted. In 12 out of 50 provisional towns with populations of over 100,000 there existed a “poor man’s” organisation. In the other 28 there was no such provision.”

I may be none the wiser, but at least I have learnt something new.

Detailed assessment

Sir Geoffrey Bindman QC writing in the New Law Journal:

“In short, what the elaborate structure of assessment comes down to, is not to keep costs down to a reasonable level, but to determine a market rate. In reality, it does not even do that. At best, it is an imperfect means of limiting dishonest claims.”

Open offers in provisional assessments

One of the proposed changes to the provisional assessment pilot is:

“When lodging documents for PA the parties should file (a) any open offer and (b) in a sealed envelope any offer under Part 36”.

Now, filing sealed offers is very sensible and answers the problem I raised last year when the pilot was first launched (see Provisional Assessment Pilot – Unanswered problems).

But why open and sealed offers? What is the open offer for? If the other party has accepted the open offer there is no need for an assessment.

Can a paying party make an open offer of £10,000 on the bill which the judge can “accept” without bothering to go through the bill?  Then the judge can open the sealed Part 36 offers to see who to award the assessment costs to (eg the paying party if they made a Part 36 offer of £11,000). That should cut the judicial time down to below the current 37 minutes. If not, what is the judge meant to do with the open offer?

Please explain.

Disbursements only, no hearing

Forthcoming change to Costs Practice Direction with new 40.5A:

“40.5A Unless the court otherwise orders, if the only dispute between the parties concerns disbursements, the hearing shall take place in the absence of the parties on the basis of the documents filed and the court will issue its decision in writing.”


Worth every penny

I have a further footnote to add to the Simcoe v Jacuzzi UK Group plc [2012] EWCA Civ 137 decision.

The Master of the Rolls, in his judgment, had expressed concerns that for a case which settled pre-trial for £12,750 the Claimant’s solicitors, Irwin Mitchell, had recovered nearly £75,000 by way of legal costs.

It has subsequently been reported that Mr Simcoe, the Claimant, was unaware of the level of costs paid to his lawyers. However, he was quick to rush to their defence. He was reported, in the press edition of The Telegraph, as saying:

“I had no idea it was that much. They didn’t tell me. It’s a lot more than me and I’m the one who got damaged for the rest of my life. It is a bit greedy to go back and claim interest.”

The Yorkshire Evening Post quoted him as saying:

“It seems very greedy to me – I’m the one who was left with permanent damage to my hand.”

I note Irwin Mitchell’s website has various quotes from previous clients, such as:

“Throughout my case, I had the peace of mind that one only experiences when matters are dealt with by absolute professionals. “, Daniel, London


“Your advice, support, knowledge and listening ear have always been very much appreciated by us both.”, Mike and Janet, York

Now they have got some more quotes to use.

On a similar subject, try typing “It is a bit greedy to go back and claim interest” into Google and see what advertisement pops up.

Simcoe v Jacuzzi UK Group plc

Yesterday the Court of Appeal handed down judgment in the case of Simcoe v Jacuzzi UK Group plc [2012] EWCA Civ 137 and gave us a clear answer to the question of whether interest on costs runs from the date of the costs order (the incipitur rule) or the date costs are assessed (the allocator rule).

Although the route by which the decision was reached is rather unusual, it was ultimately held that the incipitur rule rules and interest runs from the earlier date when the costs order is made. Further, the fact that a claim is funded by way of a CFA is not a good reason to depart from the normal rule.

Now we have a definitive answer. Unless the matter goes to the Supreme Court…

It is also worth mentioning the footnote in the Master of the Rolls’ leading judgment:

“I cannot end this judgment without referring back to the actual figures in this case. The claimant was seeking damages for significant, but relatively minor and straightforward, personal injury suffered while at work. The claim was presumably worth around £12,750, the agreed damages. The claimant’s costs of pursuing that claim, which did not go to trial, were nearly £75,000. Unless this is an exceptional case, the fact that, without even incurring the cost of as trial, it cost the claimant nearly six times as much to pursue the claim as it was actually worth suggests that something is out of kilter in at least some parts of the civil justice system. Both my own experience in this court and the evidence contained in Sir Rupert Jackson’s report on Civil Costs suggest that this is not a particularly exceptional case. It is therefore to be hoped that the changes which are in the process of being enacted and implemented in relation to civil costs and civil procedure will help ensure that costs become more proportionate. And that applies both to costs as between lawyer and client and to recoverable costs as between the parties to litigation.”

Given how this decision was reported in The Telegraph, this judgment may ultimately go down as being something of an own-goal for claimant lawyers. They may have won this particular battle but are rapidly losing the war.

Rules Committee in no doubt

I note that among the forthcoming changes to the Costs Practice Direction will be the deletion of the current CPD 39.2:

“Where there is a dispute about the insurance premium in a staged policy (which has the same meaning as in paragraph 19.4(3A)) it will normally be sufficient for the receiving party to set out in any reply the reasons for choosing the particular insurance policy and the basis on which the insurance premium is rated whether block rated or individually rated.”

I was trying to work out why this is going and then realised that it will not be needed once recoverability of ATE premiums ends. The Rules Committee is clearly not in any doubt that this will happen.

Still, is it not a bit premature given we are going to have a long run-off of old cases where staged premiums are claimed (probably a good five years)?