Fixed Costs - where are we?
Fixed costs has gone quiet! There has been no developments since LJ Jackson released his report on 31 July and the Chief Justice and Master of the Rolls immediately responded saying:
"The report now falls to be considered by us and the government, which is committed to consulting before any proposals are implemented".
The Department of Health's (DoH) consultation on fixed costs for medical negligence cases closed on 2 May 2017. No response, or communication about how the DoH review fits in with LJ Jackson's report, has been issued by the DoH.
Many experts predict that implementation will be April or October 2019 at the earliest. This is due to the unexpected general election, Brexit and LJ Jackson's recommendations being more complicated than expected.
Jackson initially said no balkanisation, but the report recommends the opposite, together with "bandings" for cases on the "intermediate" track. This will (if implemented) create a headache and time consuming process for the draftsmen amending the rules - good luck!
DJ Lumb advises - record the assumptions that were made at the hearing
[News story image] In the wake of the Harrison decision which found that a good reason is required to depart from the budget, whether downwards or upwards, attention is now being drawn to the practical implications surrounding the good reason test. DJ Lumb has provided some welcome practical guidance in this regard. The current trend is that the courts require only the front page of the budget to be filed at court and that this front page details the approved amounts. This creates problems, leaving parties having to rely on a combination of the budget assumptions and the directions order when determining what actual assumptions were made at the hearing. This lack of clarity can present problems when formulating submissions to support any good reason to depart from the budget and can lead to ambiguity regarding what actual assumptions were made when the court approved the budget. DJ Lumb has identified that this could be problematic and has suggested that the court record the assumptions in the order, however he recognises that it may be a challenge to persuade the Judge when faced with the time constraints of a hearing to make such record. Alternatively, he suggests that for those phases that have been agreed that the precedent R records the assumptions that the agreements were based upon. If the budget is to be determined at the hearing and the Judge indeed refuses to record the assumptions made in the order, DJ Lumb suggests that at the very least the advocates should make a note of the agreed/ordered assumptions.
If no steps have been taken in relation to recording any agreement regarding the assumptions, we suggest that the assumptions on the budget are amended to reflect those assumptions that the approved budgets were based upon. Those assumptions can then be filed with the front page of the budget.
Our recent cases
Fixed Costs and CPR 36
In a recent application heard in the County Court, the claimant sought an order that the defendant pay fixed costs for the period between issue and allocation (at table 6B in Part 45). The facts were that the defendant had made an offer by CPR 36.20 which the claimant had accepted after issue but prior to allocation. The defendant subsequently argued that the claim had unreasonably left the portal and that the claimant should be limited to pre-action fixed costs. The claimant made counter-submissions to the effect that the court had no jurisdiction to award costs other than those set out in table 6B by operation of CPR 36.20, which is prescriptive and gives no discretion to the court to allow any other amount. The Court found that the claimant had left the portal unreasonably, but critically failed to make any finding as to whether the court had jurisdiction to interfere with the operation of CPR 36.20 and allow some other amount. The claimant seeks permission to appeal.
Provisional Assessment and Beating a CPR 36 offer
In a recent provisional assessment, the claimant beat their own CPR 36 offer. Pursuant to CPR 47.15 in provisionally assessed matters the court “will not award more than £1,500…” plus VAT and any court fee, however the claimant argued that the consequence of beating a Part 36 offer is, pursuant to CPR 36.17, that the claimant’s costs will be assessed on the indemnity basis. As the cap in CPR 47.15 is based upon proportionality, the effect of beating a Part 36 offer is that this cap will be disapplied. The parties negotiated and reached a settlement which included costs of assessment in excess of the cap.
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