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Costs and Litigation Funding Newsletter October 2016


Fixed Costs

Good news was received this month with minutes from a CPR committee meeting on 8 July stating that the Department of Health intends to consult on a fixed costs scheme for medical negligence claims worth up to £25,000. Whilst there are still complicated medical negligence claims under £25,000, this is positive news and a significant change from the £250,000 initially proposed. Expect a consultation and developments soon.

The introduction of fixed costs for other areas of litigation has gone somewhat quiet. In Parliament this month, Sir Oliver Heald stated that the government will be consulting on fixed fees in due course, which is a message we have all been hearing for some time. The exit from the EU is likely to be causing resource problems and therefore the broader consultation on fixed costs is unlikely to happen in the immediate future. It is also likely that when fixed costs are introduced for other areas of litigation that the level will be £25,000, in order to be consistent with medical negligence claims. LJ Jackson spoke out for consistency in relation to fixed costs and therefore different levels for different areas, and exemptions, remain unlikely.

Watch this space for further developments.

Any questions? Please contact me at andrew.mcaulay@clarionsolicitors.com or  on 0113 336 3334.

Six-month Pilot Scheme for Costs Management in the Leeds Chancery Division starts tomorrow – 1st November 2016

The aim of the scheme is to permit parties to limit the extent of cost budgeting by allowing them to complete & file just the front page of the budget in cases where directions have been agreed between them. This applies regardless of the value of the claim, so the existing financial limits for cost budgeting do not apply. The Leeds Chancery Division’s note states:
Provided that, when filing their Directions Questionnaires:

a) The parties express a wish to limit the extent of cost budgeting, and;
b) The parties also file agreed case management directions.

The parties may file along with their Directions Questionnaires a simple form of cost budget (being page 1 of Precedent H whether or not a cost budget exceeds £25,000).
If the Court considers the cost budgets to be reasonable and proportionate an order may be made dispensing with costs management in accordance with CPR 3.15(2) and CPR 3EPD.1B.

The court will also then consider whether the agreed directions can be approved.

A similar approach has been adopted by Queen’s Bench Master Leslie (‘the Leslie approach’) where for those parties that are agreeable, he provides a provisional approved figure for the budget and only if the parties do not agree with the approved figure is the matter then set down for a full CCMC. DJ’s Hassall and Lyer have been adopting a paper based approach to budgeting whereby parties file written submissions, following which the budget is set by the court. Parties are given the opportunity to have an oral hearing following receipt of the sealed approved budgets, if necessary.

Proceed with caution – The Leeds pilot scheme neither offers you the opportunity to ask the court for an oral hearing nor to file written submissions.  Therefore, if you decide to file only the front page of the budget then you lose the opportunity to be able to justify the level of the budget or request an oral hearing.  The court will set approved amounts without any submissions which could result in large parts of the budget being assessed down, making it extremely difficult for you to litigate the case properly within the confines of the budget.

This is dangerous territory. The amount of recoverable costs is limited to each phase of the budget and in view of the courts continued push for the electronic bill of costs, detailed and accurate budgets are imperative to maximise those recoverable costs.

Any questions? Please contact Sue Fox at sue.fox@clarionsolicitors.com or on 0113 336 3389.

The clock is ticking to improve solicitors’ time recording, as date for the new electronic form bill of costs is set to become mandatory in October 2017

The Hutton Committee has unanimously approved a revised electronic bill of costs, the application of which is now on course to become mandatory in relation to all work done on or after 1 October 2017. Practice Direction 51L to the 86th Update to the CPR sets out the requirements.

The SCCO has already been trialling the new electronic bill of costs, and problems contained in the original prototype bill, notably in relation to the overreliance on “J-Codes”, have now been ironed out. The new bill will be broken down into phases, and then tasks, and then activities within each task. This reinforces the need, if recoverability is to be maximised, for accurate time recording, particularly given that J-Codes are not compulsory.

A new dawn in solicitor’s time recording and bill preparation has arisen as a result of the Jackson reforms, and it is essential that solicitors are mindful now of these changes if they are to transition smoothly to the new electronic bill.

Any questions? Please contact Hannah Riordan at hannah.riordan@clarionsolicitors.com or on 0113 222 32485.


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