We all have our own bugbears about the things our opponents do.
What really annoys me is an opponent who threatens to do a certain thing (eg prepare a formal bill, issue Part 8 proceedings, make an application for relief from sanctions, set a matter down for assessment, etc) if they have not heard from me (eg making an improved offer, consenting to relief being granted, etc) by a certain date. The threat is often reinforced with the statement that this step will be taken “without further notice” in the absence of a response. The deadline passes. I then receive a chase-up.
Feel free to threaten to take a certain step by a certain date in the absence of a particular response. If you have had no response, you can take it as read that I am happy for you to proceed as threatened. What annoys me is threatening to take the step and then simply sending a chase-up.
The Civil Procedure (Amendment No. 4) Rules 2015, coming into force on 1st October 2015, introduces an amendment of CPR 47.6 as to the documents to be served when commencing detailed assessment proceedings:
“8. In rule 47.6, in paragraph (1) -
(a) at the end of sub-paragraph (a), omit “and”; and
(b) at the end of sub-paragraph (b), insert -“; and
(c) if a costs management order has been made, a breakdown of the costs claimed for each phase of the proceedings”.”
About time to, although would it not have been simpler to require the bill to be drafted in different parts for each phase of the proceedings? As it is, there no doubt will remain scope for argument as to how detailed a “breakdown” needs to be. Although this comes in on 1st October 2015, parties are unlikely to receive a sympathetic reception from the courts if they serve bills before that date that are not accompanied by such a breakdown or drafted by phase.
In what is unlikely to be the shock judgment of the year, the Supreme Court has declined to strike down the pre-Jackson funding regime in Coventry & Ors v Lawrence & Anor  UKSC 50.
Perhaps more surprising is that as many as two of the seven judges dissented with powerful reasoning as to why the old regime was incompatible with Article 6.
One is rather left with the impression that the majority decision was as much reached as a result of the fear of the Pandora’s Box that would have been opened if a different conclusion had been reached rather than on the actual merits of the arguments.
The Guidance Notes on Precedent H includes the following work as not to be included when preparing a costs budget:
“Assembling and/or copying the trial bundle (this is not fee earners’ work.)”
Why is extensive work therefore routinely claimed for preparing trial bundles? Cleary careful thought needs to be given as to what to include, but the time putting it together is not chargeable.
There appears to be an unfortunate tension/conflict in the wording of the CPR and corresponding Practice Direction as to applications to set aside default costs certificates.
CPR 47.12(2) states:
“the court may set aside or vary a default costs certificate if it appears to the court that there is some good reason why the detailed assessment proceedings should continue”
This provision appears to be purely concerned with future matters (as to whether there is a good reason for the assessment proceedings to proceed). The reason for the failure to serve the points of dispute is irrelevant in this context. A “good reason” will be where the costs are likely to be reduced by a reasonable amount, and at proportionate cost, should the matter be allowed to proceed.
On the other hand, PD 47 para.11.2(3) states:
“As a general rule a default costs certificate will be set aside under rule 47.12 only if the applicant shows a good reason for the court to do so…”
This is not the same thing as whether there is a “good reason why the detailed assessment proceedings should continue”. It implies the court will give consideration to other matters.
Of course, to the extent to which there is a conflict between the CPR and the Practice Direction, it is the CPR that will prevail. Nevertheless, this is unfortunate and badly drafted.
This is the same wording as existed in the pre-Jackson version of the CPR/Practice Direction and it is therefore far too much to hope that there is any prospect of an amendment being made now to make the issue clearer.