Papers in support of provisional assessment

The Senior Courts Costs Office Guide 2013, in relation to provisional assessment, states:

“In the SCCO the Costs Judge or costs officer will have regard to the papers in support of the bill (that is, the papers listed in paragraph 13.12 of Practice Direction 47) when conducting the provisional assessment. If the receiving party has not lodged the supporting papers with the request for detailed assessment, that party should do so when requested by the court.”

Paragraph 13.12 of Practice Direction 47 reads:

“The papers to be filed in support of the bill and the order in which they are to be arranged are as follows—

(i) instructions and briefs to counsel arranged in chronological order together with all advices, opinions and drafts received and response to such instructions;
(ii) reports and opinions of medical and other experts;
(iii) any other relevant papers;
(iv) a full set of any relevant statements of case
(v) correspondence, file notes and attendance notes;”

In other words, the full file. This confirms that the SCCO is going to undertake provisional assessment based on the full file, contrary to what is envisaged by the rules where the provisional assessment will be based on limited documents being before the Court.

Interim costs certificates

An interesting approach from the Senior Courts Costs Office Guide 2013 in relation to applications for interim costs certificates in provisional assessment cases:

“An application for an interim costs certificate which is made in a case proceeding to a provisional assessment will not be listed for hearing on a date before the provisional assessment takes place unless some good reason for such an early listing is shown.”

Signature to bill of costs

Quick reminder from the Senior Courts Costs Office Guide 2013 as to the status of a signature to a bill of costs, which is still much misunderstood by many law costs draftsmen and costs lawyers:

“The signature of a statement of costs or a bill for detailed assessment by a solicitor is in normal circumstances sufficient to enable the court to be satisfied that the indemnity principle has not been breached in respect of costs payable under a conventional bill: Bailey v IBC Vehicles Ltd [1998] 3 All ER 570 CA. However, the same may not be true in respect of costs payable under a conditional fee agreement: Hollins v Russell [2003] 1 WLR 2487.”

Note the comments concerning the signature not necessarily being sufficient where there is a CFA.  No mention of this being limited to pre-November 2005 CFAs.

Retrospective costs budgeting

Costs Judge Master O’Hare, writing in New Law Journal (adapted from O’Hare and Browne: Civil Litigation, 16th Ed), on costs budgeting:

“One problem here is whether a party can obtain an approval retrospectively. In our opinion, the court can approve any costs incurred after the date of a party’s first budget, even if they were incurred before the approval was sought.”

This flies in the face of Regional Costs Judge Chris Lethem’s views on the subject which are:

“There is no retrospection in costs budgeting. Note the wording of CPR 3.15(1):

‘In addition to exercising its other powers, the court may manage the costs to be incurred by any party in any proceedings.’”

This is a disagreement not over how the court should exercise its discretion but what the rules allow.

For what it’s worth, I’m with Chris Lethem on this one.

Number of Costs Judges

The Senior Courts Costs Office Guide 2013 lists the current number of Costs Judges as being eight. This is the same number as listed in the 2006 Guide, although two of the judges are now different.

The 2013 Guide lists 13 Costs Officers, as opposed to the 11 listed in the 2006 Guide, although 7 are different. It is not clear whether these are all full time.

The 2006 Guide said:

“Cases assigned to a costs officer are usually given a date for hearing not more than 12 weeks later than the date the request for a hearing was filed. Cases assigned to a Costs Judge are usually given a date for hearing not more than six months later than the date upon which the request for a hearing was filed.”

The 2013 Guide says:

“Historically cases assigned to costs officers have usually been given a date for hearing not more than 12 weeks later than the date the request for a hearing was filed. Cases assigned to Costs Judges have usually been given a date for hearing not more than eight months later than the date upon which the request for a hearing was filed.”

No details are given as to whether the increase in delay in listing time for Costs Judges from six to eight months is due to an increase in the number of detailed assessment hearings, an increase in the size of the bills being lodged or a failure to stop costs advocates from waffling on endlessly.

Hourly rates: G v Kingston upon Hull City Council

Following on from my recent post about the role of Guideline Hourly Rates in detailed assessment hearings comes the decision in G (by her mother and litigation friend M) v Kingston upon Hull City Council (Kingston upon Hull County Court, 18/09/13).

Costs Lawyer Jon William’s always excellent costs blog provides a more detailed analysis but here are some of the key passages from the judgment:

“This costs appeal allows this court to set out the principles to be applied by District Judges (usually acting as Costs Judges) when determining a detailed assessment of costs as opposed to a summary assessment by a trial judge. One critical issue has been addressed – is there a material difference between the two?

A detailed assessment is not a scientific process, neither is it a process which will produce a necessarily right or wrong answer. A multiplicity of different methods for establishing the appropriate hourly rates has flourished. At the heart of this appeal is the question of relevance of the guideline rates. The range of possibilities varies from following those rates slavishly; to ignoring them altogether. There are clearly many shades in between those two extremes. Whilst they are described as “guidelines” for “summary” rather than detailed assessment, it is nevertheless commonplace on both summary and detailed assessments for courts to be referred to the guidelines. This is often on the basis that they should be uplifted (on the receiving party’s submission); disregarded entirely (receiving party); or followed (a common submission from a paying party in response to a Bill claiming higher rates than those in the Guidelines). However it is put, it is a matter for the court’s discretion. The seven factors in CPR 44.5(3) will be relevant; but the weight afforded to each factor is a matter for the wide discretion of the costs judge.

As we shall come to explain the guidelines are an extremely useful tool for detailed assessments, but they are not to assume an enhanced status beyond a useful starting place or cross-reference point. We emphasize at once that a detailed assessment requires the exercise of judgment as we hereafter set out.

We disagree with Mr Bacon, however, when he submits that the guidelines have no relevance whatsoever on detailed assessments. Having carefully considered the authorities referred to we take the view that it is not wrong in principle at all, and is entirely appropriate, for the guidelines to be referred to during a detailed assessment and/or for them to be used as a starting point or crosscheck. It seems to us that, to the extent that the authorities cited make any criticism in respect of the use of the guidelines, such criticism is aimed at slavishly following or adhering to them without a considered reference to the CPR 44.5(3) factors. Indeed it is difficult to see how hourly rates can be properly assessed in a vacuum without at least some starting, or reference, point. If Mr Bacon’s contention is right it is difficult to see why there is a requirement for the status of the fee earner to be included on the Bill. There must be some starting point for the consideration of the appropriate hourly rate and we are satisfied that the authorities do not criticise reference per se being made to the guideline rates subject to the provisos mentioned above. However whilst the District Judge in this case did in fact allow a rate in excess of what he found to be Miss Coulson’s grade, this was only on the “robustly applied” grade and, in our view, he fell into error in specifically excluding expertise from his consideration. Expertise is synonymous with skill, which is one of the factors to be taken into account in 44.5(3)(e). In our view he was plainly wrong to exclude that factor from his assessment of the hourly rate.”

Costs management conference

Last week I attended CLT’s The Definitive Guide to Costs Management conference delivered by Regional Costs Judge Chris Lethem.

Any firm of solicitors, law costs draftsmen or costs lawyers who did not send at least one fee earner on this course is probably guilty of professional negligence (or soon will be).

This is the judge who has run the costs management training for the rest of the judiciary. The extent to which other judges follow his guidance, perhaps, remains to be seen. However, this course gave the inside judicial perspective on how costs budgeting is meant to work and was invaluable to a proper understanding of the process. Chris Lethem is THE costs management judge. Not to mention a hugely entertaining speaker.

Nevertheless, I was rather perturbed when at the beginning of the conference he said that delegates “should feel free to comment or ask questions during the day, unless it’s HIM”, immediately pointing to me, “in which case I’ll kill him”.

Note to self: try to avoiding visiting places where they already know you.

5 spare units of time

The other morning on Radio 4 they were talking about what people would do if they could reclaim 30 minutes of their lives.

This is a thought provoking question and challenges one to focus on what one cares about and what is really important in life.

In our normal hectic lives so much of our time is wasted on the unimportant and trivial, but questioning what one would do with an extra 30 minutes helps to crystallise the things that really matter.

With the uncertainty created in the legal profession by the Jackson reforms there has probably never mean a more important time to think these things through. Life is precious and every moment should be lived to the full.

With my extra 30 minutes, I would probably check to see if I had any new text messages, update my Facebook status and possibly play another level of Angry Birds.