Power poses


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The Telegraph has reported on research showing various poses that can boost your chance of a successful career. Apparently, feet up on the desk with hands behind head is one of the most powerful poses a person can adopt. Research suggests the effect of a strong pose such as this can linger even after a person returns to a more normal stance.

I’ll try this at the next detailed assessment hearing I attend and let you know how I get on.

APIL/PIBA 6


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A large number of current CFAs with Counsel in personal injury cases are governed by the APIL/PIBA 6 model agreement. This provides:

“If the amount of damages and interest awarded by a court is less than a Part 36 payment into Court or effective Part 36 offer then:

1) if counsel advised its rejection he/she is entitled to normal and success fees for work up to receipt of the notice of Part 36 payment into Court or offer but only normal fees for subsequent work;

2) if counsel advised its acceptance he/she is entitled to normal and success fees for all work done.”

What costs are payable in the event Counsel was not advised a Part 36 had been made and the therefore did not advise one way or the other on the offer, which is subsequently not beaten?

On the face of it, there is a lacuna in the wording.

The problem should not arise, in theory, because the agreement, under the heading “Obligations of the Solicitor”, states the solicitor agrees:

“promptly to bring to counsel’s attention … any Part 36 or other offer to settle”

But what if the solicitor forgets?

The agreement states:

“Counsel may terminate the agreement if … Counsel discovers that the solicitor is in breach of any obligation [under “Obligations of the Solicitor]”.

In the event of termination in this situation the agreement provides:

“(1) If counsel terminates the agreement under paragraph 6 then, subject to sub-paragraph 2 hereof, counsel may elect either:

a) to receive payment of normal fees without a success fee which the solicitor shall pay not later than three months after termination: (“Option A”), or

b) to await the outcome of the case and receive payment of normal and success fees if it ends in success: (“Option B”).”

But, if the breach is not discovered until after the claim has settled, can Counsel still terminate the agreement?

Electronic copy of Points of Dispute


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I’ve just received a request from a costs firm asking for an electronic copy of Points of Dispute to be forwarded to them “pursuant to Costs Practice Direction 35.6”. Now that we are almost a full five months into the new regime I am unsure as to whether:

1. the other side has yet to update their standard letters; or
2. the other side is unaware the Costs Practice Direction is no more (other than for some transitional matters).

Judgment and costs


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Interesting view from the New Law Journal’s team of circuit and district judges:

Q When judgment is entered in an unspecified claim why is it in terms that it is for an amount to be decided by the court and costs. What happens if say the claimant is awarded damages of less than the defendant’s pre-action Pt 36 offer? What of the status of the judgment for costs?

A The origin of the practice would appear to be the wording in Forms N205B and N255 which must be used when judgment is requested (see CPR PD 12 para 3.1) and that is what the form provides for although there is good case for it to be brought to an end. It is our view that costs in this context is an entitlement that could be lost by no award of damages on an assessment, an effective CPR Pt 36 offer or the exercise of the trial judge’s general discretion on assessment to deny the claimant his costs.

“Mandatory” offers in detailed assessment proceedings


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I just had my first hearing dealing with an application to strike out Points of Dispute and have the Bill assessed as drawn due to an alleged failure to comply with PD 47 para.8.3:

“The paying party must state in an open letter accompanying the points of dispute what sum, if any, that party offers to pay in settlement of the total costs claimed. The paying party may also make an offer under Part 36.”

I’ve previously commented on how I consider these applications to be misconceived, at least if they are argued properly by the paying party.

The application notice argued:

“the Defendant has failed to make an open offer of settlement in accordance with Paragraph 8.3 of the Practice Direction to CPR Part 47.9. … The provision is a must provision and there is no discretion for the Defendant as to whether or not an open offer is made”

The Claimant’s Skeleton Argument continued in a similar vein:

“the Defendant served Points of Dispute without an open offer of settlement in breach of section 8.3 of the Practice Direction 47. … Contrary to the rule, the Defendant served Points of Dispute without an open offer of settlement… Section 8.3 is obligatory. The paying party ‘must’ provide the open offer”.

Whatever the other merits of the application might have been, it was brought on the basis that there is an absolute requirement to make an open offer when serving Points of Dispute. No such duty exists: note the words “if any”.

The Points of Dispute here had been served under cover of an open letter stating:

“We are awaiting instructions and will put forward an offer as soon as possible”

The judge accepted that this amounted to strict compliance with the Practice Direction. It set out in an open letter what offer, if any, was being made at that point: none. There was therefore no breach and the application was dismissed.

Barrister Sarah Robson reported on another similar unsuccessful application, made by the same firm, in the comments section of a previous post on this topic. I would be interested to hear the outcome of any similar applications, particularly where the point has been argued properly.

Contents of Points of Dispute


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The pre-1/4/13 Costs Practice Direction dealing with the contents of Points of Dispute used to state at CPD 35.3(3) they must:

“where practicable suggest a figure to be allowed for each item in respect of which a reduction is sought”

This requirement has been dropped from the new Practice Direction to Part 47. I wonder why?

Costs recoverable for provisional assessment


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In what must have been the most widely expected change to the costs rules, the 66th update to the CPR amends the section relating to the maximum costs allowable for matters that proceed to provisional assessment.

The current wording of CPR 47.15(5) says:

“The court will not award more than £1,500 to any party in respect of the costs of the provisional assessment.”

The amendment coming into force on 1 October 2013 amends this to:

“In proceedings which do not go beyond provisional assessment, the maximum amount the court will award to any party as costs of the assessment (other than the costs of drafting the bill of costs) is £1,500 together with any VAT thereon and any court fees paid by that party.”

The extent of the amendment shows how little thought (ie none) went into the original wording.

There appears to be no relevant transitional provision and so this will apply to any assessment of provisional assessment costs undertaken on or after 1 October 2013. However, the old wording will apply until then.

Many will no doubt seek to argue that this amendment does no more than “clarify” what was always intended, but this is clearly wishful thinking. Instead it sets out for the first time additional costs recoverable on top of the £1,500 (costs of drafting the bill, VAT and court fees).

The difficulty any judge has before 1 October 2013 is trying to interpret “costs” in any other way than being an all inclusive figure. If the current wording was an obvious drafting error, for example VAT being included when it was clear from the context it was meant to be exclusive, then judges could undertake some clever footwork and adopt a purposive construction to read the rule as though that was what it said.

Sadly (depending on your perspective), this is not possible here. The problem arises because clearly no thought was given at the time of drafting the current rules as to what the £1,500 was meant to cover. There was no clear “purpose” beyond limiting the total amount. As the term “costs” is clear and well established it leaves no (proper) scope for judges to give it a different or more limited meaning.

Now we do have a new definition, it must be clear that additional liabilities are included within the £1,500. This is no more rational, or irrational, then excluding VAT. It is a policy decision. However, until the new policy was announced (by publication of the rules) there was no way for judges to know what was behind the policy that led to the current wording and, indeed, we still do not know. It would be pure speculation to say that because this is what the wording will say from 1 October 2013 that must have been what was intended in April 2013.

Whether a disgruntled receiving or paying party will consider it worth appealing a decision in the interim that takes a literal, all encompassing, interpretation of the current wording remains to be seen.

Interestingly, although the time spent “drafting” the bill of costs is allowed in addition to the £1,500 in the amended wording, there is no provision for the additional costs of checking the bill and signing the certificate. (Contrast with PD 47 para.5.19: “The bill of costs must not contain any claims in respect of costs or court fees which relate solely to the detailed assessment proceedings other than costs claimed for preparing and checking the bill“. Another oversight or intended?

Further, no mention is made of work done in connection with issuing costs-only proceedings. Following Crosbie v Munroe [2003] EWCA Civ 350 it follows that such work, with the exception of the £45 issue fee, is included within the £1,500. Again, oversight or intended?

Third time lucky Rules Committee?

Mandatory optional replies


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I recently received an Order for costs from Cardiff County Court in costs only proceedings with, what appears to be, standard directions including:

“The Claimant do within 21 days of service of the points of dispute, file and serve upon the Defendant replies to the points of dispute.”

In so far as replies are optional, why does this court issue standard directions requiring them in all cases? (Level of costs claimed such that it will be subject to provisional assessment.)

Postage stamps


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The officer supplier Viking’s website has reviews of various products including some for Royal Mail Postage 1st Class Stamps 100 Per Pack. Who writes online reviews for stamps? Still, I did like this one:

“Beautifully illustrated with the bust of an attractive lady, but tell me, who is she and how did she get to be on the stamps?”

Blow to novel charging arrangement


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A US lawyer who was paid in oral sex has been suspended for a year.

The attorney’s client had been arrested and charged with drink driving. When she informed him she couldn’t afford his $1,000 fee estimate, he proposed an alternative fellatio-based fee arrangement. Unforeseen complications arose and he was therefore compelled to charge her twice more before the conclusion of the matter (highlighting the importance of proper costs budgeting).

rollonfriday.com reports:

“He was also found guilty of not confirming his fee to his client in writing, thereby denying the world the best ever engagement letter.”