Association of Costs Lawyers Council

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Last year, much to my surprise (and no doubt the equal horror of many others), I was elected to the Council of the Association of Costs Lawyers.

The experience has been a fascinating and informative one, in no small part due to the fact that during this period the Council has been going through a fundamental change. Previously the ACL was a regulatory body. Now that task has been mainly transferred to the Costs Lawyer Standards Board with the ACL Council’s role now principally being that of a representative body.

These changes raise a number of interesting issues but do mean that the role of the Council is no longer the same as the Council to which I was elected. Further, as those who followed the previous election process will remember, I stood on rather a specific manifesto of reform. Having found myself elected in a minority of one on certain of those issues, it was inevitable the Council would continue in the same direction as before.

Having now served on the Council for a year I have therefore decided to stand down.

Whatever differences of opinion I may have had over certain decisions made over the past year, it has been a pleasure to work with the rest of the Council. I managed to escape very lightly, but the extraordinary amount of time and commitment that many of the other Council members have put in over the past year to ensure the smooth running of the Association and fulfil the requirements of the Legal Services Act is something of which most members will have absolutely had no idea.

In light of the new role of the ACL Council, a consultation document has been sent to ACL members proposing some very sensible changes to the structure of the Council.

Whatever, the future look of the Council, I wish it all the best for the future.

Retrospective revocation – Revisited

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The proposed amendment to the Legal Aid, Sentencing and Punishment of Offenders Bill that I discussed yesterday has been causing no end of fuss (understandably) with at least one expert commentator advising against signing a client up to a CFA until the Bill is in its final form.

However, further analysis of the proposed amendment has led most commentators to come round to the view that, if implemented, it will not render success fees irrecoverable if a matter is not settled prior to April 2013 (see this analysis for the current line of thinking). It appears that the amendment is actually intended to catch CCFA claims once the implementation date is reached. In other words, the amendment is necessary to stop success fees in CCFA cases being recovered where work begins after April 2013. It will not be possible, under this amendment, to claim a success fee is recoverable simply because the original CCFA pre-dates April 2013.

It does seem rather bizarre that it has only just been appreciated that CCFA cases might not have been caught by the Bill as originally drafted. (What else is being overlooked?)

As to this amendment, as I mentioned yesterday, “this could have been worded considerably more clearly”. I think we can all agree on that.

Date success fee recoverability will end

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One of the big issues concerning Jackson implementation is which date will be chosen for ending recoverability of success fees. Will it be by reference to the date of the accident date (as per the fixed RTA success fee regime) or the date the CFA was entered into (as per revocation of the CFA Regulations 2000)?

The Legal Aid, Sentencing and Punishment of Offenders Bill, as drafted, reads: “The amendment made [concerning ending recoverability] does not apply in relation to a success fee payable under a conditional fee agreement entered into before that subsection comes into force”.

With April 2013 likely to be the date of implementation, this would mean no recoverable success fee where the CFA is entered into after that date.

Well, at this point those of a claimant disposition may want to make sure they are sitting down before reading further. (If you think you look cool reading this on your ipad, standing up on the train, that image is likely to be shattered when you have to be helped up from the floor by your fellow passengers.)

Justice Minister Lord McNally has proposed an amendment that reads:

“Clause 43

Page 30, line 30, leave out from “not” to end of line 32 and insert “prevent a costs order including provision in relation to a success fee payable by a person (“P”) under a conditional fee agreement entered into before the day on which that subsection comes into force (“the commencement day”) if -

(a) the agreement was entered into specifically for the purposes of the provision to P of advocacy or litigation services in connection with the matter that is the subject of the proceedings in which the costs order is made, or

(b) advocacy or litigation services were provided to P under the agreement in connection with that matter before the commencement day.”

Although this could have been worded considerably more clearly, commentators (including APIL) have read this to mean that unless a costs order is obtained before April 2013, no success fee will be recoverable regardless of the date of the CFA.

Let me spell that out. If this amendment is passed it will mean that a claimant who is currently pursuing a claim under a CFA (or who enters into a CFA between now and April 2013) will not be able to recover a success fee from the defendant unless the claim is settled and a costs order obtained before April 2013.

Now, whatever the serious flaws to the current system, to retrospectively end recoverability would be surprising to all concerned. This issue has only just arisen, but some quick initial thoughts:

A claimant who has already entered into a CFA, under the current rules, would have had little, if any, interest in the setting of the level of the success fee. This is because they would have expected the success fee to be recoverable from the other side. Retrospectively ending recoverability would mean the client becomes liable to pay the solicitor the success fee from the damages recovered. Indeed, with many cases the damages will not be remotely sufficient to cover the success fee leaving a successful claimant positively out of pocket (remember, there will be no damages cap on the level of success fee with an existing CFA). The client would have been denied any opportunity to make an informed decision to try to negotiate the level of success fee with the solicitors or find solicitors who would charge a lower success fee (a central element of Jackson’s vision).

Solicitors who have CFA Lites would be unable to recover any success fee. Having promised not to charge the client more than is recovered from the other side, if recoverability goes between the parties it must equally go as with the client.

Standard Law Society CFAs inform the client: “If you win your claim, you pay our basic charges, our disbursements and a success fee. You are entitled to seek recovery from your opponent of part or all of our … success fee”. This advice will be, retrospectively, untrue.

If a solicitor gives this information to a client when entering in a CFA at any point since this amendment was proposed (apparently 7 March 2012), and this amendment is then implemented, it would almost inevitably make any such advice negligent and almost certainly prevent the solicitor recovering the success fee from the client. Given APIL are aware of this proposed amendment (see Tweet), it is hard to envisage how any proper advice given to a client since 7 March 2012 that fails to spell out the possibility of this retrospective change being made would not be negligent.

Why would any defendant settle a claim between now and April 2013?

I am aware that there is some frantic lobbying going on in the background to stop this amendment being passed but the practical implications of this are such that I am giving this 0% chance of being accepted. That assumes, of course, that those voting have any understanding of what they are being asked to decide and what the implications are. On second thoughts, I’m revising this and giving it a 50% chance of becoming law.

Other good news for claimant lawyers includes the proposal by Labour peers to halve the fixed fees solicitors can claim from the low-value RTA Portal (and that no increases to the fees may be made without a vote and approval of both Houses of Parliament) and the confirmation from the MoJ that they will extend the value of claims in the portal from £10,000 to £25,000 from April 2013.

Legal costs made simple

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Professor Richard Wiseman’s book :59 Seconds records the research of Daniel Oppenheimer and his delightfully entitled paper “Consequences of Erudite Vernacular Utilized Irrespective of Necessity: Problems with Using Long Words Needlessly”.

This revealed that using simpler vocabulary in written text produced a higher estimation of the writer’s intelligence by readers compared with the use of more complex language.  The unnecessary use of complex language produces a bad impression. 

In this respect I’m lucky when it come to writing the Legal Costs Blog or, for example, drafting Skeleton Argument: I don’t know any long words.

Who’s the stupid one now?

Legal Costs Central

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The Justice website has been updated meaning a large number of the old links are broken (again). I have therefore gone through the system and updated all the links on Legal Costs Central. All relevant costs information (links to relevant sections of the CPR, Senior Courts Costs Office guidance, historical Guideline Hourly Rates, case law, etc) should be no more than one or two clicks away.

Do let me know if you come across any other broken links or if there are any other links you think I should add.

Retrospective success fees

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Is it possible to recover retrospective success fees? Read my article on the subject in the Solicitors Journal.

Costs Lawyer diversity

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The Costs Lawyer Standards Board has recently sent out a “Diversity Questionnaire”. Now, I know they are obliged to send out this kind of thing as part of their obligations under the Legal Services Act 2007, but the urge to return the questionnaire indicating that I’m a disabled lesbian gypsy Sikh is damn near irresistible.

Time to appeal extended

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Forthcoming change to CPR 47.14:

“(8) If an assessment is carried out at more than one hearing, then for the purposes of rule 52.4 time for appealing shall not start to run until the conclusion of the final hearing, unless the court orders otherwise.”


It currently runs from the date of the judgment on the particular issue, which can make a decision as to whether to immediately appeal more difficult. It is only at the end of a detailed assessment one has a full picture. For example, a party may want to appeal a specific point if it will make the difference between winning or losing on an offer but otherwise would be prepared to let the decision stand. In fact, many costs judges already make such an order staying the time for appealing where the issue arises, but it does need someone to remember the problem.

New approach to summary assessment

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Nice story from Michael Cook, author of Cook on Costs, writing in the New Law Journal:

My early legal life in Leeds was full of characters. There was the chairman of the West Riding bench who, after they had found a man guilty of a weights and measures offence, was told that the prosecution was seeking costs of over £1,000. With fine Yorkshire commonsense he responded: “Nay lad, we don’t find him that guilty.”

New costs QCs

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Congratulations to Andrew Post and Alexander Hutton on their appointment as Queen’s Counsel.

It appears that eligibility for QC status is limited to practising barristers or practising solicitors who hold higher court rights of audience.

No scope for Costs Lawyers to apply.

Something for the Costs Lawyer Standards Board to look into?