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Costs and Litigation Funding Newsletter October 2019

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Introduction

Our next Costs and Litigation Funding seminar is booked for Thursday 28 November 2019 - please save the date and you will receive your invitation in due course.

In this newsletter, we have some interesting articles by Sue Fox and Matthew Waring on costs management and tips on how to get paid for your hard work. As always, please feel free to contact any of the Costs and Litigation Funding Team with any questions or queries that you may have.

In addition, we are always talking about key legal costs developments and what we are up to on our Twitter account (@ClarionCosts), please follow us if you want to be kept-up-to-date between our monthly newsletters. 

More changes to costs management

The 109th update to the CPR now requires that all of the incurred costs up to and including the first CCMC are included in the Costs Budget, despite the Costs Budget having to be filed either with the directions questionnaire or 21 days before CCMC. Either way, from the 1st October there is now a requirement to estimate an element of the incurred costs that will be included in the budget, or alternatively update the budget prior to the CCMC to ensure the maximum amount of incurred costs are included. That said, the attendance at the CCMC will continue to be estimated and included in the incurred costs.

Voluntary Capped Costs Pilot Scheme

“Not a single case has been allocated to the capped costs pilot scheme in the nine months since the scheme began” says the Law Society Gazette. This was a voluntary scheme in the Business and Property Courts where parties saw their costs capped at £80,000.00. Time will tell whether we see an adapted version of this scheme, the abandonment of the scheme or perhaps the piloted scheme being made mandatory. To see our previous commentary on the scheme please follow this link, or visit our blog.

Revised Costs Forms for the Summary Assessment Pilot

The court has updated their forms for the summary assessment pilot scheme following feedback that identified some general areas that could be presented in a better way. They redrafted the guidance notes (contained at Tab 6 on each form), which are quite detailed but serve to address the issues raised by court users; ensured the same information is being obtained, but changed the layout and used the same language as in Precedent S (where possible) in the interests of consistency; and not changed the Practice Direction itself. However, please note that the MOJ are not issuing Word/PDF versions and are requesting that the Excel versions for this pilot are now used. The revised forms can be found here. For more details regarding this pilot scheme please follow this link to our January newsletter.

Please contact Sue Fox on 0113 336 3389 or at sue.fox@clarionsolicitors.com if you have any questions.

How to get paid properly for your hard work

Matthew joined the team in July and has over 6 years' experience in legal costs. Below, Matthew shares his top tips to help you get paid properly for the great work you do!

1. A watertight retainer with your client is essential, whether this is a CFA, DBA or Private Retainer etc. This limits the possibility of any arguments regarding your client’s obligation to pay and thus eliminates/reduces the risk of any indemnity principle arguments from the losing party.  

2. Fully engage with the Costs Budgeting process. The risk associated with missing the deadline is draconian (i.e. the budget being reduced to court fees) and this risk should now be embedded in legal practitioner’s minds. Review your file, ascertain the date that the Costs Budget is required to be filed (CPR 3.13 and always remember the clear day rule (CPR 2.8)! Assumptions have always been essential; however, the introduction of the electronic bill has raised the bar in terms of their importance. They assist with any revisions, and in the event that your budget is exceeded, they support any argument for an increase to the budget.

3. Check your settlement terms, as this ensures that you are able to recover costs from the losing party, where appropriate. Here are some points to consider:

a. Are you settling on a costs inclusive basis? If so, you will not be able to recover additional legal costs from the losing party.

b. Does the settlement agreement include the payment of legal fees? Failure to do so puts you at risk of not being able to recover your legal costs.

c. Are you currently limited to Fixed Recoverable Costs or do you want to have the claim allocated to the Multi-Track to recover time basis costs (i.e. not fixed costs)? In some instances Fixed Recoverable Costs can be more favourable.

4. The benefits of a well-documented file is paramount (the better the file, the better the reward). Recording all of your time properly, preparing file notes where appropriate and ensuring that all work undertaken has been properly documented optimises the recovery of costs from the other side and stifles any potential challenges to your costs.

Please contact Matthew Waring on 0113 288 5639 or at matthew.waring@clarionsolicitors.com if you have any questions.

Disclaimer: Anything posted on this blog is for general information only and is not intended to provide legal advice on any general or specific matter. Please refer to our terms and conditions for further information. Please contact the author of the blog if you would like to discuss the issues raised.