My recommended cocktail for the holiday season is a variation of the Boulevardier cocktail from Harry McElhone’s 1927 book Barflies and Cocktails. (Not this didn’t stop Nigella Lawson appearing to take credit for inventing the same in her recent Christmas TV special and renaming it the Kansas City Christmas).
My variation adds mulling syrup to give it a real Christmassy feel.
1. Take one and a half measures of bourbon, one measure of Campari, one measure of sweet (rosso) vermouth and half a measure of mulling syrup.
2. Stir with ice and strain into a chilled martini glass.
4. Repeat as necessary.
I think I’ll call it the Winter Jackson Special.
It is, perhaps, a moot point as to whether a dispute relating to, say, recoverability of a success fee or ATE premium is a matter of principle. The relevance of this is that PD 47 para.8.2 states:
“Points of dispute must be short and to the point. They must follow Precedent G in the Schedule of Costs Precedents annexed to this Practice Direction, so far as practicable. They must:
(a) identify any general points or matters of principle which require decision before the individual items in the bill are addressed”
Nevertheless, costs barrister Margaret McDonald, writing in Costs Lawyer magazine, makes the useful observation in relation to provisional assessment:
“One of the difficulties is that items such as additional liabilities are often at the end of Form G, when the judge is almost out of time and does not have the time that might be necessary to consider the detail and nuances of technical breaches of the mandatory provisions contained in the old costs practice directions. Think about the order and structure of the points of dispute. Put your best points and ‘big ticket’ items first.”
An unreasonable refusal to engage in ADR can lead to adverse costs consequences even to a party who is ultimately successful. This same principle applies to costs disputes.
What amounts to unreasonable refusal will be fact sensitive, but anecdotal evidence suggests that some costs judges in the Senior Courts Costs Office are ordering parties to pay the costs of assessment where they have refused an offer of ADR from the other side.
Certainly one well known personal injury law firm appears to be using this for tactical reasons. Mickey Mouse offers are made together offers of mediation, JSM, etc, no doubt in the hope that if the other side declines to engage (on the basis the offers made are not even a sensible starting place for negotiations) they will have lined up an argument as to the costs of detailed assessment.
The problem paying parties face is the fact that this combines with the default starting position that they will be ordered to pay the costs of assessment unless the court orders otherwise. Mediation, JSMs, etc can add another expensive layer of costs to the assessment process with no guarantee of success. Although making a sensible offer at an early stage should always be the appropriate approach, even this is no guarantee a court will conclude it was reasonable not to engage in ADR.
ADR can certainly assist in helping parties to reach agreement in higher value disputes but paying parties will want to ensure this is at proportionate cost.
If offered ADR, I will often agree to this but on the basis that each side bears their own costs of the process. This flushes out the time wasters as it means that it will focus the minds of both sides on trying to reach a sensible agreement, otherwise any costs incurred will have been entirely wasted with no chance of recovering the same. Given the whole purpose of ADR is that it is outside the formal litigation process, it is unlikely that placing this condition on engaging in ADR will be criticised by the courts in due course.
I’ve commented before on the issue of whether the costs incurred in relation to pre-provisional assessment applications, such as applications to set aside default costs certificates, applications for interim payments or applications for relief from sanctions fall within the £1,500 cap for provisional assessment.
CPR 47.15(5) states:
“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.”
It is worth pointing out again that the rule refers to “court fees” in the plural.
A paying party will never pay court fees in a provisional assessment matter other than those relating to interim applications.
A receiving party will only pay one fee (for setting the matter down) unless there have been interim application and/or a Court fee for issuing Part 8 proceedings (see my previous Blog post on this issue).
Assuming the use of the plural was deliberate (and it is to be granted that it is doubtful that any thought was given as to what was meant to be included in the cap), this would suggest interim applications are certainly included in the cap and full credit would have to be given for any interim costs orders (ordered or agreed) during the provisional assessment process (ie interim costs order made for £500 plus VAT and Court fee, only a further £1,000 plus VAT and Court fee recoverable for any further work done).
Although I have serious doubt as to what thought was given to this matter when the rules were formulated, it would be entirely consistent with the overriding aim of the provisional assessment process (to limit the costs of assessment) that it was intended to be an inclusive figure to discourage unnecessary applications, such as those for interim costs certificates. (The Senior Courts Costs Office Guide states: “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”.)