I previously mentioned that the conflict in decisions as to whether fixed costs apply where costs are payable on the indemnity basis, when a claimant succeeds on a Part 36 offer, was due to be resolved by the Court of Appeal in February.

Kerry Underwood’s blog now reports that this case has settled. We are therefore left in the dark as to when fixed costs do or do not apply.

Hopefully this is a matter the rules committee will address as a matter of urgency. Given the benefit of certainty and the avoidance of further satellite litigation are lost if fixed costs do not apply, surely the answer would be to continue to apply fixed costs but with an uplift, say 10%, on the amount. This leaves all the benefits of fixed costs but with a costs incentive retained to the claimant to make a good Part 36.

The mandatory pilot scheme in the Senior Courts Costs Office for the new J-Codes based bill of costs format had been due to start in April but was then delayed until October 2016. It has now been announced that this date has also been abandoned for further consideration.

Part of the impetus for this appears to have come from the Law Society who wish to consult with their members. (The Law Society can hardly be blamed for this. Jackson only recommended a new software based bill of costs in December 2009 and so this will have come as quite a surprise to them.)

For the time being, we are left with a continuing potential gap between budgeted cases and bills of costs that do not properly reflect those budget phases. The recent “summary by phase” requirement is wholly inadequate as an interim measure.

The conspiracy to make the Jackson reforms unworkable continues.

Do fixed costs continue to apply if a claimant is entitled to costs on the indemnity basis? I am grateful to Gordon Exall’s Civil Litigation Brief for highlighting two conflicting decisions on this issue. This is now apparently due to be heard by the Court of Appeal in February.

Something has gone seriously wrong with the drafting of the rules that it can be anything other than 100% clear as to when fixed costs applies. It makes a mockery of the certainty that such a regime is designed to create.

I’ve uploaded an article on the conflict between the phase-by-phase/item-by-item approach of costs budgeting/detailed assessment and the new proportionality test to the Costs Law Articles Archive, first published in the Solicitors Journal.

I am always rather mystified when I receive Replies that contain a preamble along the following lines:

“Many of the Defendant’s points of dispute do not comply with the costs practice direction as they do not state concisely (or at all in some cases) the nature and grounds of the dispute. The Defendant has chosen, in many cases, to either offer no reason for the proposed reduction or just state that the claim is ‘excessive’.

CPR Part 47.9 CPD 8.2(d) states -

8.2
Points of dispute must be short and to the point. They must follow Precedent G in the Schedule of Costs Precedents annexed to the Practice Direction, so far as practicable.

They must -

(b) identify specific points, stating concisely the nature and grounds of dispute.

The Claimant submits that where the Defendant has failed to state the nature and
grounds of their dispute then that dispute should be struck out and the item(s) allowed in full.”

If I understand the point being taken, it is being suggested that a Dispute that simply states the number of communications claimed, hourly rate, disbursement, time claimed, etc, is “excessive” without further detail or explanation is non-compliant with the Practice Direction.

Now, it is no doubt possible that where, for example, 10 routine communications are being claimed to obtain a single set of GP records that instead of a dispute reading: “Excessive. Reduce to 3”, this could be elaborated on:

“The Defendant respectively submits that the 10 routine communications claimed to obtain a single set of medical records is unreasonably high and disproportionate and that a competent litigator acting with all due skill and alacrity should have been able to obtain the same without the need to undertake this level of communications. To the extent to which this level of communications has been undertaken, this implies a number of chase-up communications (responsibility for which should not fall on the shoulders of the paying party on an inter partes assessment) or are of a non-fee earner, purely administrative nature. The Defendant submits a reasonable allowance would be 3 routine communications. The Court is reminded that this is a standard basis assessment and by virtue of CPR 44.3(2)(b) when assessing costs the Court will ‘resolve any doubt which it may have as to whether costs were reasonably and proportionately incurred or were reasonable and proportionate in amount in favour of the paying party’.”

However, I am not sure that (other than length and cost) this adds anything to the substance of the dispute.

Nevertheless, that may just be my view of the matter. What I really struggle with is the suggestion that the shortened dispute is non-compliant with the Practice Direction, particularly where the receiving party’s Replies themselves expressly make reference to the requirement that Points of Dispute “must follow Precedent G in the Schedule of Costs Precedents annexed to the Practice Direction, so far as practicable”. I can only conclude that those who churn out these kind of Replies have never taken the time to read Precedent G.

Here it is: Precedent G.

And here are some of the example “model” disputes:

• “Rates claimed for the assistant solicitor and other fee earners are excessive. Reduce to £158 and £116 respectively plus VAT.”
• “The number of conferences with counsel is excessive and should be reduced to 3 in total (9 hours).”
• “The claim for timed attendances on claimant (schedule 1) is excessive. Reduce to 4 hours.”
• “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.”
• “The time claimed for preparing and checking the bill is excessive. Reduce solicitor’s time to 0.5 hours and reduce the costs draftsman’s time to three hours.”

What is good enough for Precedent G is good enough for me (and the Courts).

Interest on costs usually runs from the date of the order for costs. CPR 47.7 provides that detailed assessment proceedings should be commenced within 3 months of the final order/judgment.

CPR 47.8 provides that where a receiving party fails to commence detailed assessment proceedings within the period specified, the paying party may apply for an order requiring the receiving party to commence detailed assessment proceedings within such time as the court may specify. By virtue of CPR 47.8 (3), if the paying party has not made such an application and the receiving party commences detailed assessment proceedings late, the court may disallow all or part of the interest otherwise payable to the receiving party but will not impose any other sanction.

I would suggest it has therefore been generally accepted that a receiving party will have a three month period to commence detailed assessment proceedings and will recover interest for that three month period in any event. If they commence detailed assessment proceedings after three months, the court may will disallow interest for the period of any subsequent delay.

Given interest currently runs at 8%, for firms with a good cash-flow there is a positive incentive to delay commencement until the end of the three month period and it is certainly common to see some firms delay until very close to the three month period before providing details of their costs.

The decision of Mr Justice Leggatt in Involnert Management Inc v Aprilgrange Limited & Ors [2015] EWHC 2834 (Comm) is therefore a potentially important development. As with all such decisions, the full judgment should be read to properly appreciate the reasoning and specific facts of the case but, in essence, he held that it would be unreasonable to order interest to run until the paying party knows what costs are being claimed and has had a reasonable opportunity to consider what sums are properly payable. He therefore ruled that interest should start to run from three months after the order for costs.

In summary:

“it seems to me that a reasonable objective benchmark to take is the period prescribed by the rules of court for commencing detailed assessment proceedings. Pursuant to CPR 47.7, where an order is made for payment of costs which are to be the subject of a detailed assessment if not agreed, the time by which detailed assessment proceedings must be commenced (unless otherwise agreed or ordered) is three months after the date of the costs order. In order to commence such proceedings, the receiving party must serve on the paying party a bill of costs giving particulars of the costs claimed. It is then for the paying party to decide which items in the bill of costs it wishes to dispute. Postponing the date from which Judgments Act interest begins to run by three months will therefore generally serve to ensure that the party liable for costs has received the information needed to make a realistic assessment of the amount of its liability before it begins to incur interest at the rate applicable to judgment debts for failing to pay that amount.”

It will be interesting to see whether this becomes the new “norm”.