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?
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I was recently asked to negotiate costs on behalf of a landowner who offered to pay me in bales of hay, and was prepared to pay the receiving party in the same manner. Such is the economic climate.
It is not always sensible to push for the settlement you believe your costs deserve. I was once asked to attend an assessment hearing as an agent. My client was legally aided but had failed to file the appropriate statement in order to protect himself. We offered to settle for £10k with payments in instalments. My opponent chose to push for £13k which his bill was worth. However, even though the bill was assessed at £13k, they ended up with £10k including costs of assessment secured with a charging order in case the decaying property were miraculously restored. My client was delighted – in stark contrast to my opponent who had to advise his client that he effectively had nothing, losing £10k cash and gaining a worthless charging order.
The moral of the tale is your legal costs may be worth more than you sometimes have to accept, particularly where the other side is self-funding the payments.
As the Jackson Juggernaut rumbles on towards April 2013, things are slowly becoming clearer.
Lord Jackson's Juggernaut
The House of Commons have overturned the amendments to LASPO Bill affecting cases involving children and industrial diseases. The pilot scheme involving budgeting/costs management in Birmingham has been a success. The pilot scheme involving provisional assessment has also allegedly been successful, but one practitioner stated that it was only successful if you were a Claimant! How can that be a resounding success?
For those unfamiliar with the pilot provisional assessment scheme, District Judge Hill, sitting in Leeds and Scarborough County Court has been busy provisionally assessing bills of costs where base costs claimed are below £25,000. Either party can seek an audience with the Judge to say he is wrong, but failure to improve ones position by 20% means costs penalties. It apparently takes the DJ an average of 37 minutes to conduct his assessment, but this is the judge that told me all detailed assessments only need 2 hours and if it doesn’t finish in that time, you know which side he is favouring and so you can sort it out outside. Cheers!
It is expected that this scheme will be rolled out to all courts, so you are then left with the risk of having my favourite judge of recent times who told me he doesn’t like to interfere with the time claimed as no solicitors have time to waste – I managed to persuade him that he was not necessarily wasting time but pondering too long.
The assessment will be based on shorter or more succinct points of dispute and replies are only to be done where it adds something to the equation (or concedes something). I am all for better points of dispute. Countless examples of cut and paste points have passed over my desk over the years. The lastest are 120 pages to a 40 page bill that repeat the same paragraphs on every page. Conduct will be raised as an issue! But if points have to be shorter can we make the point sufficiently for a judge to interpret for the purpose of provisional assessment – particularly when they are untrained/out of date/opinionated/prejudiced etc… As for the replies, these have always been optional and Master Hurst has long advocated they should only be done if they add something so why reinvent the wheel – to stop some courts that have a practice direction ordering there production? So this surely comes back to educating judges, or having some continuity between courts. But where is the fun in that!
Simple solution for all of LJ Jackson’s gripes – enlist the help of costs lawyers! After all solicitors have been doing it as have high court bailiffs, and nobody should argue with them.
- Provisional Assessment Pilot (kerryunderwood.wordpress.com)