Giles v Veolia part 2

Further to my earlier post regarding Giles v Veolia, Taylor Rose saw fit to appeal. The appeal was due to be heard on 11th April in the Court Of Appeal. However, at the 11th hour, Taylor Rose have withdrawn their appeal.

Where does that leave Horwich Farrelly, Berrymans, Keoghs, Keelys and Shakespeare who have been riding on the back of Taylor Rose’s appeal having argued that Giles had no wider relevance before changing tune to say they’re not paying ATE pending the Giles appeal. Will be interesting to see if now they capitulate and start paying up since Giles was so relevant.

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Change Management

Some call it J day, others call it April Fools Day.

Either way 1st April is going to be the dawn of a new era in legal services and its vital for firms to react and adapt. We have had to repeatedly adapt as we grow up and its now different in law firms. Adapting to the new rules, regulations and opportunities is key.

If you need help, a word of wisdom or ideas on survival, do not hesitate to ask. Hesitation will lead to failure.

Good luck

Everyone ready for the Jackson reforms?

I was talking to a solicitor on Friday and was more than a little surprised to find out he had not yet read the proposed changes to CPR, was not aware of the fact that if you actually are entitled to a detailed assessment, you may get to the end and then have a load more knocked off for good measure, and that you were to be obliged to do a budget in multi track cases?

Is all this news to you too?

Get in touch and we can help you and your legal practice get up to speed.

After The Event Insurance Premiums Recoverability in the Portal system

When the RTA portal was designed and the rules written, the easiest thing ever would have been to state that a premium was recoverable and it should be either staged or one stage only. But oh no – that would be too easy.

Instead, the rules were drafted to say ‘may’ and so began the war of county court decisions vs county court decisions.

Wanting their cake and eating it, the Defendant lobbyists argued for staged premiums when it was fixed price, or fixed price when it was staged and/or argued there was no need for such a premium as there was no risk on the portal – notwithstanding the huge variety of ways of the case falling out of the portal, the delays caused by Defendants on the go-slow………………

So, the mantle was thrown down for District Judge Smedley sitting in Liverpool County Court to create a test case and the Claimants and Defendants sat back and waited for his decision released today. The salient points are:

“…So, the claimant and his solicitor dealing with funding at the outset know that their particular claim may or may not resolve within the Protocol. If they choose a single premium policy and the case settles within the Protocol, it will be said on assessment that they should have chosen a staged, reduced-premium policy. If they choose such a policy and the case exits the Protocol and goes to trial, it will be said they should have chosen a single premium policy – in each case because the choice made was unreasonable. I accept Mr. Finn’s evidence on this point. There is no “right” or “wrong” decision to be made. Both single premium and staged premium policies are legitimate.

Having regard to all the matters I have considered, I am satisfied that in the present stage of development of the use of the Protocol, with the inevitable teething problems, and with the uncertainty whether a case will remain in the Protocol or not, a claimant and his solicitor are entitled to choose either a single premium policy or one with staged premiums. Either is permissible; neither can properly be said to be unreasonable…”

So DJ Smedley agrees with what most people other than insurers thought.

MPs Response

‘Respiratory industrial disease is a terrible problem, and the government wants to see sufferers able to claim compensation at the earliest possible opportunity.
The MOJ is therefore working closely with the DWP to help mesothelioma sufferers who are unable to trace their employers’ insurer. The government hopes to be in a position to make an announcement on this before the summer recess’.

All good so far from my local MP in response to my nice lobbying over LASPO.

‘The no-win no-fee reforms….are simply about reducing the exorbitant fees lawyers are able to charge in these sort of cases. They will not reduce access to justice’.

Correct – but what about all the other types of claims?

‘General damages will be increased by 10% and there will be a cap of 25% on the amount of general damages that may be taken as a success fee.

No special damages can be taken as a success fee.

In PI claims a system of Qualified One Way Costs Shifting will be introduced

Legal costs will still be paid by (sic) the winning side

As the scheme stands the government would expect lawyers to consider carefully whether it is in the best interests of the client for them to claim the full 25% as a success fee.’

So claimants are not allowed to recover additional liabilities, there is no mechanism in place for QOWCS and the winner pays! Likewise, no sign of how they are going to implement the 10% increase in damages.

As for the allegation that solicitors charge exorbitant fees – it was the government of the day who introduced the scheme and scrapped legal aid. Who pays for the investigation of unsuccessful cases?

With the governments track record of implementing new systems (e-system at the Rolls Building?), the statement that the extension to the RTA portal will not be possible before April 2013….. The list of failures is getting longer by the day. And let’s not forget Prof Regan predicting other aspects unravelling. The show continues!

E-working

I was tempted to leave LASPO alone for a few days and digest the Law Gazette & New Law Journal  over the weekend, but then I saw the headline “E-working project scrapped”. (I also saw how many people were visiting my blog searching for such info and I thank you the readers for this.)

Intrigue made me read on to find that a major project to introduce e-working in the Rolls Building has been “shelved” due to “significant problems”. Having spent £9.5m getting nowhere fast in an attempt to enable court users to submit documents electronically, improve document management and listing, the project has been shut down.

£9.5m spent doing feasibility studies, fundamental reviews and deciding that the scope of the work required was so significant that a business case could not be made.

Judging by the slapdash efforts to put LASPO together, I would not have paid £1 for the Jackson Report and LASPO, and yet £9.5m is not enough to introduce email and cloud computing – things you can get for free from all good service providers. And yet they want to introduce LASPO, extend the RTA portal to deal with all PI cases up to £25k (and beyond at a later date) and introduce electronic billing, doing away with the experts who know about costs – the Costs Lawyer, and move to provisional assessment by Judges who are not interested and do the exercise summarily.  All of the reports involved in coming up with the Jackson report had the vague whiff of being drafted on the back of a napkin (albeit a lot of napkins) disregarding all valuable evidence submitted by people in the know, whose jobs are now endangered due to the bureaucracy and idiocy of people who cannot introduce email and cloud computing having spent £9.5million thinking about how to do it.

Forgive me for sounding as if I am having a rant. But I move on.

Following the ping pong game between the House of Commons & House of Lords, it has been confirmed now that the recovery of success fees and after the event insurance will be scrapped as of April 2013, unless the case relates to mesothelioma, where a temporary reprieve has been granted to allow for further “reports” to be prepared.  Surely these reports should have been undertaken BEFORE LASPO went to print?? We are still no nearer to finding out whether that wonderful thing known as Qualified One Way Costs Shifting (or QOCS for short) is going to happen. This means, Claimants would not be entitled to recover the cost of After The Event Insurance obtained to protect against the cost risk that still exists. Not to worry – damages are to be increased by 10%……once a case has been to Court to establish the precedent.

Might I be bold and suggest that LASPO goes the way that the e-working project has gone at the Rolls Building – on the scrap heap?

Surviving in practice

Looking through ‘The Community Legal Service (Funding) (Amendment No.2) Order 2011’ The Community Legal Service (Funding) (Amendment No.2) 2011 you wonder a) how on earth do people make sense of this, and b) how did we end up here. When starting out as a trainee costs draftsman, excluding criminal law, I had 2 tables to refer to – civil rates and family rates – which occupied a couple of pages in my now battered Cook on Costs. Now we have 16 pages. Its kind of like the Budget which used to occupy a few pages and now you need a wooden crate.

Why does a neurosurgeon in London get less per hour than one in the provinces? Why do we pay so relatively little to people dealing with vulnerable children?

Likewise, how complicated can they make the LASPO Bill. It emerged, following a panicked response from the MOJ that the amendments proposed by The House of Lords last week were purely to bring into the equation Collective Conditional Fee Agreements, which may otherwise have been omitted. It was not intended that the proposed disallowance of recovery between the parties of the success fee would be retrospective.

 

It is therefore imperative that law firms retain high quality costs lawyers and costs draftsmen to help firms wade through the quagmire of paperwork to remain in practice and remain profitable.  Why not inquire how we can help, book a seminar on costs related issues, or instruct us to sort out your case management issues.

Is it the end for CFAs as we know them?

As the Legal Aid Sentencing & Punishment of Offenders bill aka LASPO makes its way through The House Of Lords various amendments have been proposed that have caused great alarm.

Either unwittingly, unknowingly or quite possibly deliberately, the bill has been amended such that success fees will no longer be recoverable with the application being retrospective. This means that it will not just apply to CFAs entered into after some date in April 2013, but will be for all cases where judgement has not been entered.  So that long running dispute started a few years ago and heading to trial in June 2013, from which you were expecting a handsome reward – possibly for your pension or nest egg that you richly deserve given the risk taken – will disappear. Ouch.

As always, here at Carlisle Legal Costing, we will try to keep you up to date, but this is potentially devastating news for your firms’ business model. Over the next few weeks we will be working hard to bring you alternative business models for your firm

Where there’s pleasure, there’s pain

Hot on the heels of the Claimant friendly judgement of Simcoe v Jacuzzi, comes the murmurs that the Defendants are to appeal.

Also in the news, Prime Minister David Cameron has “committed the government” to reducing the RTA portal costs of £1200 payable to Claimant Solicitors along with suggesting that a minimum impact speed will be necessary to establish a claim for whiplash.

Lets think about this. The aim is to reduce costs. However, this will surely mean more Claimant Solicitors seeking to escape the portal thus satellite litigation about premature issue etc. More costs incurred.  Secondly, more satellite litigation over the speed of impact – he says he was doing 30mph, she said it was more like 10 mph. More increased costs with the crash investigators being called out.

So two suggestions by David Cameron to reduce costs will in all probability increase costs. Objective failed.

When will people actually realise when they are actually better off, or have achieved the best possible result, and just need to get on with things.  It reminds me of when Claims Direct first came to power with an insurance premium of circa £1215 with no success fee. The insurance industry cried foul and brought down the house of Claims Direct. This was replaced with the house of staged premiums and success fees for PI work. If the Master of the Rolls thinks £75k for costs is bad as was the case in Simcoe, just seen a case where the premium alone was £75k for damages of £20k and costs of circa £20k. Oh how the insurers wish they hadn’t killed Claims Direct Mk I (ie not the RJW incarnation).

 

Interest runs from the date of Judgement aka Simcoe v Jacuzzi

The decision in Simcoe v Jacuzzi UK Group PLC [2012] EWCA Civ 137 is now available.

The outcome was that interest on costs runs from the date of judgement in all cases whether they be funded under a CFA or otherwise, to include third party funding.

The issue on the appeal concerned the date from which interest should run on an award of costs in favour of a successful claimant, whose legal representatives were retained under a conditional fee agreement (a ‘CFA’), in a personal injury claim brought in the County Court.  The background was that the claimant, Mr Simcoe, was employed by the defendant, Bradford Jacuzzi UK, for the purpose of assembling shower cubicles. By 2005, he was suffering pain as a result of the repetitive nature of the work involved. In that connection, he instructed Irwin Mitchell Solicitors LLP to act for him in proceedings for damages against the defendant. Irwin Mitchell agreed to act under a conditional fee (often known as ‘no win no fee’) basis, and in due course the claimant entered into a conditional fee agreement (a ‘CFA’) on 5 October 2007. Following an agreement being reached between the parties regarding costs, District Judge Hill was requested to rule whether interest should run on those costs from the date of the settlement of the damages claim or the date of settlement of the claim for costs. District Judge Hill summarily found that the case of Gray v Toner should apply, and he ruled that the interest should run from the latter date based on the Allocatur Rule.

An appeal was taken and due to its importance, was transferred to the Court of Appeal. On Appeal various points were taken and the The Master of The Rolls found in favour of the Claimant and ruled that the interest runs on costs from the date of judgement – the incipitur rule applies and issued a note of warning to all with regards to continued satellite litigation over costs “which would do the legal system no credit”.