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The upcoming changes to the Costs Practice Direction include amendments to the rules concerning Points of Dispute.
The current CPD 35.2 reads:
“Points of dispute should be short and to the point and should follow as closely as possible Precedent G of the Schedule of Costs Precedents annexed to this Practice Direction.”
This is to be replaced by:
“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:
(1) identify any general points or matters of principle which require decision before the individual items in the bill are addressed, and
(2) identify specific points, stating concisely the nature and grounds of dispute. Once a point has been made it should not be repeated but the item numbers where the point arises should be inserted in the left hand box as shown in Precedent G.”
You will note the use of the word “must” in place of “should”. There is now no scope for arguing over the point.
I still receive, on a virtually daily basis, claimants’ Replies arguing that a dispute that simply says: “Hourly rate excessive, reduce to £150” or “Time claimed on documents excessive, reduce to 50 hours” is defective as failing to give sufficient reason for pleading a reduction. These are clearly written by law costs draftsmen or costs lawyers who have never bothered to read the current Precedent G (click to view). We will now have a new Precedent G (click to view) which “must” be followed. Consider the following examples taken from it:
“Point 1 – General point – Rates claimed for the assistant solicitor and other fee earners are excessive. Reduce to £158 and £116 respectively plus VAT.”
“Point 2 – Point of principle – The claimant was at the time a child/protected person/insolvent and did not have the capacity to authorise the solicitors to bring these proceedings.”
“Point 5 – (47) – The total claim for work done on documents by the assistant solicitor is excessive. A reasonable allowance in respect of documents concerning court and counsel is 8 hours, for documents concerning witnesses and the expert witness 6.5 hours, for work done on arithmetic 2.25 hours and for other documents 5.5 hours. Reduce to 22.25 hours.”
Note the absence of references to case law, the absence of lengthy (any?) justification for the reductions proposed and the total lack of a line-by-line challenge to the document time. Failure to comply with Precedent G is likely to lead to costs sanctions. At best, the time that will be allowed for drafting Points of Dispute will be reduced to the time that should have been spent on the task to comply with Precedent G.
None of this is meant to be particularly revolutionary. This is how it was always meant to be done and what costs judges in the Senior Courts Costs Office have been clamouring for over the years. The problem has been that the costs profession has ignored the existing guidance. This should no longer be possible (if judges do their jobs properly).
Although these “new” rules will not be retrospective, given we now know what is to be expected (and this is no more than what the current Precedent G requires), law costs draftsmen and costs lawyers would be well advised to start following this guidance immediately.
Note the reference to: “Once a point has been made it should not be repeated but the item numbers where the point arises should be inserted in the left hand box as shown in Precedent G”. This is why every individual item on a bill should be numbered. Those who draft bills and those who produce bill drafting software, please note. It’s no good giving all the profit costs a single item number.
The one area where I have concerns is how this links in with the roll out of provisional assessments. Fine if you had regional costs centres (the one failure of Jackson in failing to recommend this) or if everything was listed before a regional costs judge. However, if a district judge is expected to conduct a provisional assessment on paper in one hour faced with such Points of Dispute, are they really all capable of dealing with a dispute as brief as “The claimant was at the time a child/protected person/insolvent and did not have the capacity to authorise the solicitors to bring these proceedings”?
I can’t be alone in having attended a detailed assessment hearing where there is a Wraith v Sheffield Forgemasters Ltd dispute only to discover the judge is unaware of the case or what is it authority for. Will they be expected to research the law without being referred to any case law? Will they go away and locate copies of judgments if referred to the case law (all in one hour)? How is one expected to plead this kind of point with no knowledge of the level of costs knowledge the judge will possess? It is often a mistake to assume a judge on assessment has any costs knowledge.
Oh, and some of you might have realised that complying with these rules will be less labour intensive and reduce the fees that can be properly charged.