The future of the Jackson Costs Review becomes ever more intriguing and yesterday’s post on the Jackson Review may only tell half the story.
I have received information from a reliable source that both main political parties support the
The future of the Jackson Costs Review becomes ever more intriguing and yesterday’s post on the Jackson Review may only tell half the story.
I have received information from a reliable source that both main political parties support the
The big issue over the Jackson Review of Civil Litigation Costs is whether there is the political will to implement the proposals. It appears that the Final Report is now starting to gain the political support it needs.
The Law Society Gazette reports: "The government and the opposition have hinted that they would implement some of Lord Justice Jackson’s recommendations on civil litigation costs, following the first parliamentary exchange on the judge’s report since its publication a month ago. Justice secretary Jack Straw said: ‘Lord Justice Jackson’s proposals… are designed to reduce the costs of civil litigation overall. Those costs have risen too high, and that is a bar to proper access to justice.’ He said that the government is ‘actively assessing’ the proposals."
Dominic Regan, writing in the New Law Journal, says: "The greatest myth of the moment is that ‘Jackson will never happen’. It will and soon."
A number of readers no doubt work in the area of RTA claims. Some at the front-end of the claims process dealing with the substantive claim, others at the tail-end of the costs side. Hopefully, those readers will therefore be aware that we have a new claims process for low value RTAs starting on 6 April 2010 (and if they didn’t know they are in real trouble).
What some of the more observant may have noticed is that despite being only a few weeks away from the start date we still have no published rules as to how the scheme will work. Quite how this shocking state of affairs arose is a mystery. However, finally, some progress is being made. The Ministry of Justice has written to a number of specific bodies:
A further definition from The (Alternative) Legal Costs Dictionary:
The legal press and various other sources have been busy in recent weeks providing various summaries and commentaries on the final report of the Jackson Costs Review. One of the best comes from specialist costs counsel Andrew Hogan of Ropewalk Chambers (although I don’t necessarily agree with all of his interpretations of the proposals or their possible consequences).
For those of you who have not yet read the full 557 pages of the report (shame on you) or feel you are not fully up to speed with some of the recommendations and implications, I can thoroughly recommend this.
The first newsletter provides an overview of the report, the second newsletter looks at it implications and proposals in relation to personal injury litigation and the third newsletter considers the practical difficulties thrown up by Lord Justice Jackson’s proposals.
In a previous post I commented on the unsatisfactory way that legal costs case law (see post) is scattered all over the place and the problems this causes trying to keep on top of developments.
One potential solution to this problem may come from the re-launched Costs Law Reports. This is a publication that has gone through (to put it mildly) recent difficulties. It is now in the hands of new publishers who are making a very serious attempt to make this the most comprehensive collection of costs case law available. The service will officially re-launch at the beginning of March. Further information can be obtained by emailing: CostsLawReports@classlegal.com
There will still be a print service, but more interesting is an online service with a fully searchable database and an email alerting service.
More exciting still, I understand that the publishers longer term goal is to try to bring together on the online database a fully comprehensive collection of costs case law going way beyond those cases reported in the print version. If this ambitious goal can be achieved then this will become an absolutely invaluable tool for those with any involvement in legal costs. The Legal Costs Blog strongly supports Costs Law Reports in this endeavour.
It is not unusual for me to make offers in relation to claimants’ bills of costs that represents only a fraction of the amount claimed. However, from time to time the response I receive is not simply the inevitable one of displeasure but what appears to be a genuine reaction of incredulity. There appears to be total disbelief in relation to the figures I have put forward, particularly in relation to document time in high value claims. The claimant’s lawyer takes the view that no solicitor, however good, could possibly be expected to undertake the work in so little time.
The problem that many claimant lawyers have is that their experience of what is "normal", in terms of time taken to run a claim, is often limited to no more than how long it takes them, or possibly some of their colleagues in the same firm, to run similar cases. They have no idea how other firms handle such claims or how quickly. If they spend 100 hours on documents for a certain type of disease claim they assume that is normal and reasonable. The fact that the majority of other firms, for a similar claim, might take, for example, 50 hours is something totally outside their field of experience.
On the other hand, as a defendant costs practitioner, I see large numbers of bills of costs from firms throughout the country. In my capacity as a manager, I have seen literally thousands more claims for costs beyond those I have dealt with personally. It is staggering the difference in the size of a bill from an efficient firm compared to those from inefficient firms. Before some readers start complaining that they should not be criticised for dealing methodically and conscientiously with their clients’ claims and not cutting corners, my experience is that the best fee earners, in terms of the results they achieve for their clients, are very often exactly the same ones who produce the most modest bills. It is often those firms that are not real specialists (despite their claims to the contrary) who under-settle claims, take twice as long to achieve under-settlement, and then produce the highest bills. One of the obvious criticisms of the current legal costs system is that it not only rewards inefficiency but fails to properly reward the skilled lawyer.
I fear that there is a similar danger for costs judges. The bills that come before them are invariably the ones that are the most excessive. A paying party (or at least one with any sense) will not take to detailed assessment a bill that is broadly reasonable. Even where the bill is overstated by 10-25% it will usually be possible for the parties to agree a compromise. Therefore, the cases that come before costs judges are usually ones where the amounts claimed are more likely to be at least 25%+ over what a paying party knows to be reasonable compared to cases run by other firms. More often, the amount claimed is 35%+ over a reasonable figure. So what do most costs judges have to measure these claims against? Other excessive bills that have also been brought before them to be assessed. You can see the problem. Costs judges run the danger of coming to believe the excessive bills that come before them are typical. There should be some process whereby costs judges routinely have submitted to them the bills produced by the best claimant firms so that they have a yardstick of excellence against which to measure claims for costs.
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Legal costs practitioners are still struggling to work out exactly how the most recent VAT change impacts on what level of VAT to apply to different periods in bills of costs. What news do we now receive? Both Labour and the Conservatives are apparently considering a VAT increase to 20% to help fill the massive public deficit. Are they deliberately trying to torture us?