Civil Costs: Law and Practice

Second Edition

Mark Friston MA (Cantab), MB MRCP(UK), FCL of the Middle Temple, Barrister and Costs Lawyer Kings Chambers, Manchester Ely Place Chambers, London

H JO CONTENTS

Preface to the Second Edition v Preface to the First Edition vii Table of Cases xxxv Table of Statutes cix Table of Statutory Instruments cxvii Table of Practice Directions and Protocols cxxxi

Introduction

Chapter 1 The History of Costs 3 The ancient position at common law 4 Early statutory intervention and the notion of 'costs' as a separate legal entity 4 The early practice of costs 6 The emergence of consumer protection 6 The development of costs for defendants and 'the English rule' 7 Early concepts of proportionality and an awareness of what was not 'costs' 7 Further consumer protection 8 Costs as a specialism 9 More costs, better assessments and greater consumer protection 9 Contentious and work Consistency between the courts and the 'party and party' basis of assessment Further developments in the Solicitors Acts and associated legislation The introduction of legal aid Developments in the middle of the twentieth century The modern regime in general

Chapter 2 The Language of Costs 19 Costs terminology in general 19 Citation of costs authorities The CPD 20 Neutral citation 20 Costs lexicon x Costs: Law and Practice

Chapter 3 The Status of the Rules Governing Costs 39 The sources of costs law 39 Decided cases and precedence 40 The Codes of Conduct regulating solicitors 42 Other rules of professional conduct 46 Financial and accounts rules 46 Guidance notes to the Code of Conduct 46 Civil Procedure Rules 1998 46 Jurisdiction and the procedure of making the CPR 46 Interpretation 47 The status of practice directions 49 Vires to make practice directions 49 Pre-action protocols 51 The status of persuasive informal guidance 53 Court guides 53 Learned journals 54 Textbooks 54 Consultation papers 55 Guidance in the Solicitors' Codes of Conduct 55

Chapter 4 The Court's Powers 57 Senior courts: costs judges 57 County courts: common law and equity 59 County courts: solicitor and client 60 Authorised court officers 60 The court as an arbiter The province of Parliament 61

II Law of Costs

Chapter 5 The Nature of Costs 65 General 65 Arise from litigation or professional work 66 Costs not charges 66 Actually incurred 67 Calculable 67 No costs 68 Costs of being a litigant 68 No test of remoteness 68 Not a punishment or a reward 68 Policy considerations 69 Summary 70 Contentious and business 70 Costs versus damages 74 Contents xi

The work of lawyers 77 The Solicitors Act 79 The Courts and Legal Services Act 80 The Legal Services Act 2007 86 Work done by non-lawyers 90 Discretionary grant of right to be heard 92 Counsel 92 Small claims 92

Chapter 6 Orders for Costs (Jurisdiction and Discretion) 95 The jurisdiction to make an order 95 The form of the order 97 The importance and meaning of the order 98 No controversion 98 Extent of opportunity to make further points 99 Factors to be taken into account The range of orders 104 Success and 'the general rule' 107 The meaning of success The measure of success Admissible offers Admissibility Admissibility of offers to mediate Admissibility on the small claims track Effect of a refusal to waive privilege Effect of an admissible offer on the incidence of costs When to consider admissible offers Conduct 123 Non-procedural conduct Procedural conduct 125 Procedure Issues Historical perspective 131 The modern approach 132 Successful issues unreasonably argued ('costs building') Circumstances in which an issues-based approach should be taken 135 Determination of the correct order 136 Percentage orders Issues abandoned or barely pursued Exaggeration 143 Culpable exaggeration Innocent exaggeration 146 Other issues relevant to the incidence of costs 147 Refusal to mediate Failure to respond to an offer Incurring disproportionate costs and small claims Deplorable behaviour xii Civil Costs: Law and Practice

Commencing proceedings in the wrong venue 153 Changes to statement of case 154 Proving probate claims Irrelevant and barely relevant factors 155

Chapter 7 Orders for Costs (Types of Order) 159 Cross-orders and other reciprocal entitlements 159 Orders relating to claim and counterclaim Orders other than those relating to claim and counterclaim Orders under the CPR and the alternatives to Medway Set-off and CPR, r 44.3(9) 164 Bullock and Sanderson orders, passing up the line and cut-through orders 164 The circumstances in which such orders should be made Failure against both defendants 168 Passing up the line and cut-through orders Consent orders and orders Split trials and 'forthwith' orders Deemed orders 176 Non-payment of court fees CPR Part 36 177 Discontinuance 178 Deemed orders after applications Costs-only matters (no hearing on the substantive issues) Examples of cases where there was a clear winner or loser Examples of cases where there was no clear winner or loser Orders where proceedings are not issued Claimant 192 Defendant 193 Non-party costs orders Jurisdiction 194 Procedure 195 Evidence 196 Privilege and disclosure Categories of order Wasted costs Jurisdiction 216 Discretion 221 Evidential issues 223 The standard of conduct 226 Causation 230 Quantum 235 Procedural issues 236 Orders against publicly funded opponents 240 The old regime 240 The current regime The wording of the relevant provisions 249 Contents xiii

Orders against the Crown 258 No order as to costs 258 Orders in specific circumstances 259 Costs-only proceedings 259 Interim costs orders 264 Pre-action disclosure and applications for disclosure against non-parties 265 Clarification and revision of orders 268 Clarification 268 Correction 268 Review 269 Consent 271

Chapter 8 Retainers (General Principles) 273 Types of retainer 273 Disambiguation 274 General principles 275 Entire contracts 275 The effect of a retainer being an entire contract 280 Ambit and authority Interim payments, breaks and termination 283 Payments on account in contentious business 283 Express provisions 284 Implied provisions 285 Natural breaks 287 Termination 289 General provisions 294 Evidence: factual disputes about retainers 297 Private retainers 301 Business agreements (non-contentious and contentious) 302 Non-contentious business agreements 304 Contentious business agreements 309 Procedural issues 322 Implied retainers 324 Oral retainers 328 Issues of fact 328 Issues of law 329 Sham retainers 331 Waiver 334 Unlawful retainers 334 Statutory prohibition in the context of costs 335 Specific instances of express and implied statutory prohibition 341 Arguments in the alternative to implied statutory prohibition 353 Retainers made not at the solicitors' offices 354 The general application of the Regulations 354 Legislative background 355 Application to solicitors 356 xiv Civil Costs: Law and Practice

The 2008 Regulations 357 The 1987 Regulations 364 The 2000 Regulations 367 The 2002 Regulations 371 Retainers involving more than one client 371 Joint obligations 372 The nature of obligations where there is a plurality of debtors 372 The principle of equal apportionment 375 Deviation from equal apportionment 376 Costs sharing agreements 377 Guarantees, etc 378 Retainers with specific types of person 379 Retainers with children and those who lack capacity 379 Retainers with companies and members 379 Retainers with unincorporated associations 379 Retainers with trustees, executors, liquidators, etc 379 Relevant extracts from the Regulations 379 The Consumer Protection (Cancellation of Contracts Concluded away from Business Premises) Regulations 1987 (as amended) 380 The Consumer Protection (Distance Selling) Regulations 2000 (as amended) 382 The Cancellation of Contracts made in a Consumer's Home or Place of Work etc Regulations 2008 390

Chapter 9 Conditional Retainers (Conditional Fee Agreements) 397 Types of conditional fee agreements 397 Ordinary conditional fee agreements 397 CFA Lite 398 Discounted conditional fee agreements 399 Discounted CFA Lite 400 Damages-based agreements 400 Collective conditional fee agreements 401 Speccing agreements 402 Thai Trading agreements 403 Contingency fee agreements 403 Conditional retainers 404 The language of conditional fee agreements 404 Additional liability 404 Base costs 404 Collective element 405 Funder 405 Percentage increase 405 Postponement charge 405 Quantum risk 406 Success fee 406 Conditional fee agreements and the statutory law 406 Statutory definition 406 Contents xv

Basic requirements of all enforceable conditional fee agreements 409 The requirement to be in writing 409 Prohibited conditional fee agreements 410 Further requirements where there is a success fee 410 Individual conditional fee agreements Materiality 415 Do the CFA Regulations 2000 apply? 417 Genuine issues 420 The written instrument 420 Matters other than the written instrument 422 Individual regulations: breach and materiality 423 The effect of a breach of the CFA Regulations 2000 448 Conditional fee agreements made before 1 April 2000 449 Collective conditional fee agreements 450 Regulated damages-based agreements 455 Conditional fee agreements and the common law 462 Conditional fee agreements in non-contentious business 463 Unregulated damages-based agreements 464 Conditional fee agreements and persons other than lawyers 467 Champerty and maintenance 468 The history of conditional fee agreements 480 Contractual issues concerning conditional fee agreements 483 Scope 484 'Win' 487 Retrospectivity and conditional fee agreements 488 Solicitor and client 488 Between the parties 489 Backdating 490 The relevant Regulations 490 The Conditional Fee Agreements Regulations 490 The Conditional Fee Agreements Regulations 2000 492 The Collective Conditional Fee Agreements Regulations 2000 495

Chapter 10 Errors in Retainers 499 The position between solicitor and client 499 Undue influence 499 Consideration 501 Remedial steps which may be taken before the entitlement to costs has arisen 504 Rectification by deed 504 One retainer or two 505 Contentious business agreement or other type of agreement 505 Conditional or non-conditional replacement 506 Redundancy 506 Severability assignment etc 506 Interest 506 Consumer regulations 506 xvi Civil Costs: Law and Practice

Remedial steps which may be taken after the entitlement to costs has arisen 507 The remedy of construction 508 Rectification

Chapter The Indemnity Principle 519 The indemnity principle in general Historical perspective An attenuating principle? 520 No profit 521 Principle of individual application 521 Exceptions to the indemnity principle 522 Evidencing the indemnity principle 523 The two presumptions 523 Scrutiny by the court 526 Procedural issues 527 The ethos of the CPR 528 Evidential issues 529 The indemnity principle in practice 530 Dual liability for costs 530 Subrogation 533 Miscellaneous issues 535 Quantum meruit 537 Estoppel 538 Employers 539 Legal staff 539 Non-legal staff 541 Pro bono 542 Legal Services Act 2007, s 194 544

Chapter 12 Points of Law 547 Agency 547 Solicitor agents 548 Non-solicitor agents 549 Specific relationships 551 Plural liability: joint and several liability and contributions 553 Types of plural liability distinguished 553 Interpretation of plural costs awards 554 Joint liability 556 Several liability 557 Joint and several liability 558 Contributions 558 Set-off 560 Jurisdiction 561 Procedure 563 Discretion 564 Contents xvii

Finality of litigation in costs 568 Res judicata 569 Abuse of process 575 Limitation, delay, and costs 579 Delay generally 580 Interest 581 Misconduct and delay Limitation 587 Laches and abuse of process 598 Human Rights 600 The place of human rights law in the assessment of costs 600 Jurisdiction and governing bodies rights and remedies 603 Determining incompatibility 605 Specific topics relevant to the law of costs 608

Chapter 13 The Bases of Assessment (Indemnity Basis and Standard Basis) 613 The difference between the two bases of assessment The circumstances in which an award on the indemnity basis might be made 615 Orders to pay costs on the indemnity basis pursuant to CPR, r 44.3 616 Orders to pay costs on the indemnity basis as a result of having made Part 36 offers 625

Chapter 14 Acceptance of Part 36 'Beating' Defendant's Part 36 etc 633 The origin and history of the jurisdiction 633 The power to make Part 36 offers 635 Timing 636 Subject matter 636 The form of an offer and procedure 636 Defendant offers 637 The 'relevant period', late offers and time limits 637 Personal injury claims 638 Clarity and adequacy of information 639 Disclosure to the court 640 Technical shortcomings 640 Discretion and substantial compliance 641 Construction 641 The effect of failing to beat a defendant's Part 36 offer 643 The circumstances in which a defendant's offer will be beaten 645 'Near misses' in monetary claims 645 Barely beating an offer 648 Offers beaten by consent 648 Assessing the value of an offer in non-money claims 649 Interest 650 Deductible benefits 650 xviii Civil Costs: Law and Practice

The circumstances in which it would be unjust to make an award Conduct 652 Confusing offers 652 Inadequate information 652 Acceptance of offers 653 Acceptance within the relevant period 653 Acceptance following expiry of the relevant period 654 Renewed offer 655 Rejection of offers 655 Withdrawal of offers 656 Time-limited offers 659 Proceedings brought to an end 659

Chapter 15 Costs Capping, Budgeting and Protective Costs Orders 661 The history of the jurisdiction 661 The source of the jurisdiction 663 General provisions 663 In what circumstances should a costs capping order be made? 665 'Ordinary' claims 665 Defamation claims 667 Partial costs capping orders 668 Group litigation 668 Procedure 669 The costs of the capping exercise 674 Costs budgeting 674 History 674 Jurisdiction 675 Costs budgets 676 Reviews and revisions 677 Effect of budgets 678 The future 678 Public law challenges 679 Jurisdiction and principles 680 Procedure 685

Chapter 16 Security for Costs 687 and philosophy 687 Jurisdiction 688 International 688 Primary jurisdiction 689 Secondary jurisdictions 691 Detailed assessments 693 Principles and discretion 693 Conditions (primary jurisdiction) 694 Discretion (primary jurisdiction) 699 Discretion (secondary jurisdictions) 708 Contents xix

Re-application and variation 709 Unless orders 710 Quantum and form of security Procedure 713 and disclosure

The Practice of Costs (Solicitor and Client)

Chapter 17 Invoices and Bills 717 Interim statute bills Interim invoices on account Distinguishing interim statute bills from bills for a payment on account The retainer 719 The information given to the client 719 The absence or presence of natural breaks 719 The form of the bill 720 The parties' conduct 720 The content of the bill 720 Carrying forward a balance 720 Natural breaks 720 Statute bills generally 722 The requirements of a statute bill 722 Reasonably complete 724 Sufficiency of the narrative 724 Signature 727 Delivery 729 Erroneous bills: amendment, withdrawal, and substitution 730 Gross sum bills and requests for bills containing detailed items 732 The consequences of failing to comply with section 69 of the Solicitors Act 735 Loss of protection 736 Statutory demand 736 Payment 736 Set-off 737 How disbursements are treated in a statute bill 737 Power to order delivery of a bill 738

Chapter 18 Solicitor and Client Assessments 741 On the application of the party chargeable or the solicitor 741 The meaning of 'party chargeable with the bill' 742 The time of delivery 744 The meaning of 'payment' 744 The meaning of 'one month' and of ' 12 months' 746 Assessment as of right 746 xx Civil Costs: Law and Practice

The court's discretion 746 Special circumstances 747 Procedural issues 750 The scope of the assessment 752 The costs of the assessment 753 One-fifth rule 754 Non-attendance 755 Special circumstances 756 On the application of third parties 757 The difference between applications made under s 71(1) and (3) 758 The meaning of 'a person other than the party chargeable with the bill' 759 The meaning of 'any person interested in the property' 760 The assessment hearing and procedure leading up to the assessment hearing 761 Costs certificates in solicitor and client assessments and interim payments 763

Chapter 19 Compromise and Alternatives to Statutory Assessments 765 Remuneration certificates (now obsolete) 765 Procedure (now obsolete) 765 Notification requirements 767 Payments 768 Non-statutory assessments (Turner & Co v quantifications) 769 Statutory demands and bankruptcy proceedings 770 Statutory demands 770 Bankruptcy proceedings 772 Disputed compromise 772 Disputed business agreements, etc 773 Disputed oral agreements 774 Disputed agreements relating to a bill 774 Accord and satisfaction 775 Promissory estoppel 775 Subsequent promise 776 Legal Ombudsman and SRA 777 Governance 777 The Legal Ombudsman's Jurisdiction 777 Charges and fees 778 Powers 778 Costs orders 780 Acceptance of rejection of the determination 780

Chapter 20 Solicitors' Rights and Remedies: Lien, and Charging Orders 781 Suing for recovery of costs General principles 781 Contents xxi

Non-contentious work (pre August 2009) 783 Contentious work 784 Summary judgment 784 Default judgment 785 Payments on account 786 Lien 787 The effect of a retaining lien 787 The effect of a particular lien 788 The extent and acquisition of lien 788 Relief from lien 790 Lien where the solicitor discharges himself 790 Lien where the solicitor is still acting 792 Lien where the client terminates the retainer 792 Loss of lien 793 Undertakings to hold to order 796 Solicitors' Charging Orders 796 Under the Solicitors Act s 73 796 Charing orders under Charging Orders Act 1979 800 Solicitors' security for costs 800

TV The Practice of Costs (Between the Parties)

Chapter 21 Detailed Assessments between Opposing Parries 805 Summary of the assessment process 805 Form and content of the bill of costs Commencement and when to commence the assessment The earliest a detailed assessment can be commenced The latest a detailed assessment may be commenced 820 Variation of the bill of costs 822 Venue for detailed assessment 822 The 'appropriate office' 822 Transferral 824 Allocation within the judiciary 825 Sanction for delay in commencing proceedings and 'unless orders' 827 Points of dispute and consequences of not serving 829 Contents 829 Variation 832 Service 832 Failure to serve points of dispute 834 Default costs certificates 834 Issue 834 Setting aside a default costs certificate and requesting a stay 835 Procedure where costs are agreed 838 Uncontested agreement as to costs 838 Contested agreements 839 Replies 840 xxii Civil Costs: Law and Practice

Provisional assessments (selected courts only) 841 The past, the present and the future 841 Jurisdiction 842 Procedure 842 Wording 843 Offers to settle (Part 47 offers) 844 The time for making an offer 845 The form and scope of the offer 845 Offers other than Part 47 offers 846 Withdrawal, amendment, rejection and limitation of Part 47 offers 848 Acceptance of an offer 849 Offers at the hearing 850 Requesting a hearing 851 The receiving party's role 851 The paying party's remedies and delay 851 Documents for requesting a hearing 852 Fees for requesting a hearing 854 Other procedural issues 855 Sanction for delay in requesting a hearing 855 The hearing 856 Special notice provisions 856 Filing papers in support of the bill 856 Submissions at the hearing 857 Judgments in the context of detailed assessment 857 Determination of issues of fact 858 Miscellaneous matters concerning detailed assessment 859 Liability for costs of detailed assessment proceedings 859 The factors to be taken into account 860 Conduct and the costs of the detailed assessment 861 Amount of reduction and the costs of the detailed assessment 861 'Reasonable to claim' and the costs of the detailed assessment 862 Part 47 offers and the costs of the detailed assessment 862 Interest on the costs of the assessment 866 Procedure for assessing the costs of the assessment 866 The wording of the relevant provisions relating to the costs of assessment 866 Payments on account of costs 867 Judicial approach and jurisdiction 867 Amount of payment on account of costs 870 Wording of the relevant provisions Interim costs certificates Final costs certificates and the conclusion of the assessment 872 Calculations 872 Final filing 873 Payments already made 873 Payments outstanding 874 VAT rate changes 874 Delay in filing the completed bill 874 Contents xxiii

Pro bono work and completion 874 Stay of enforcement of the final costs certificate 874 Discontinuing costs proceedings and withdrawal 876 No consent as to determination 876 Consent as to determination 877 Enforcement and rights against legal expenses insurers 877 Means of enforcing a costs debt 878 Rights against legal expenses insurers 879 Costs-only proceedings 883 Jurisdiction 883 Procedure 884 The relevant wording 886

Chapter 22 Summary Assessments 889 Meaning of summary assessment 889 Entitlement to a summary assessment 889 Discretionary power to order that there be no summary assessment Lack of time 891 Substantial costs 892 Substantial objections 892 Complex objections 892 Challenges to the indemnity principle 892 Conditional fee agreements 892 Litigant in person 893 No fetter 893 Procedure (generally) 893 Procedure (failure by party to serve statement) 894 Procedure (additional liability) 895 Summary assessment at conclusion of proceedings 895 Assessment of costs incurred while the claim is ongoing 895 The assessment itself 897 Ascertainment of quantum on a summary assessment 898

Chapter 23 Appeals 901 Appeals from authorised court officers 901 The appeal in general Timing 901 Record of hearing below 902 Publicly funded appellants 902 Appeals other than from authorised court officers 902 The applicable standard 903 Procedure 906 Interest on overpaid costs 912 Topics likely to arise during an appeal hearing 913 Assessors 914 Second appeals 915 xxiv Civil Costs: Law and Practice

Judicial review 916

Chapter 24 Evidential Issues 917 Introduction 917 Election, filing and disclosure 917 Filing 917 Election 917 Filing 918 Duty to file adverse material 918 The effect of filing adverse material 920 Material mistakenly filed 921 Election: the principles 921 The procedure of election and the court's discretion 922 Proportionality and election 926 Implied waiver of privilege 926 Withdrawal of waiver of privilege 928 The consequences of electing to disclose documents 928 The consequences of electing not to disclose documents 929 Disclosure in cases of fraud 929 Disclosure of non-privileged material 929 Is the document privileged? 929 Procedure 931

Chapter 25 Representation and Rights of Audience 933 Introduction 933 Unauthorised persons 934 Authorised persons 936 Restriction of rights of audience 937 Interested advocates 938 Authority of costs practitioners 939 Conflict of interest 940

The Quantum of Costs (Solicitor and Client)

Chapter 26 The Basis of Assessment between Solicitor and Client 945 Contentious costs 945 The solicitor and client presumptions 946 The county court procedural restriction 947 costs 948

Chapter 27 Quantum between Solicitor and Client 951 Introduction 951 The two components: hourly rates and value charges Contents xxv

The limited role of authority and comparators 952 Hourly rates 952 The value charge 953 Principle 953 The weight to be given to factors other than value 954 The weight to be given to value 956 Shoddy work 957 Estimates and assurances on a solicitor and client basis 959 Duty to give an estimate 959 Putative waiver 965 Assurances about how services will be provided 965 Interest between solicitor and client 967 Interest on non-contentious costs 967 Interest on contentious costs 968 Judgment debt interest 969 Discretion generally 969

Part VI The Quantum of Costs (Between the Parties)

Chapter 28 Hourly Rates 973 The approach in general 973 The relevance of guideline rates 973 Pre-CPR terminology 975 The A factor 976 The B factor 978 The relevance of pre-CPR law under the CPR 980 The modern approach 982 The time when the work was done 983 The grade of person who did the work 983 The place where work was done 984 Other factors The use of comparators and precedents 994 Composite rates 995

Chapter 29 Assessment of Time 997 The approach in general 997 Principles of accounting for time 997 Methods of working 1000 Costs incurred at particular times Specific categories of work Costs of specific activities The Gibson principles Costs of marshalling the facts 1014 Costs of funding 1015 Costs of legal research xxvi Civil Costs: Law and Practice

'Solicitor and client' work 1017 Costs of isolated counterclaim Costs of preparing material which was not used Costs of dealing with the media 1019 Costs of inquests and other proceedings in the context of a civil claim 1019 Costs of negotiation and mediation 1021 The costs of preparing and checking the bill of costs 1022 Status of signatory 1022 More than one firm 1022 Time claimed for checking the bill 1022 Costs of preparing the bill 1022

Chapter 30 Additional Liabilities 1025 Success fees 1025 Jurisdiction and regulatory restrictions 1025 Types of success fee 1027 Prematurity and early risk assessments 1029 Risk and success fees 1030 Issues other than risk 1044 Notice of funding and failure to serve 1046 Statement of reasons and failure to serve 1051 Alternative means of funding 1051 Recovery of success fees retrospectively 1052 Different rates for different periods 1054 Fixed success fees Costs draftsmen 1055 Solicitor and client issues 1055 ATE policies and formalities 1057 The Financial Services and Markets Act 2000 1058 The SRA Financial Services (Scope) Rules 2001 1058 The SRA Financial Services (Conduct of Business) Rules 2001 1060 ATE premiums 1062 Jurisdiction 1063 Components of the premium and the language of ATE insurance Types 1067 The assessment of ATE premiums 1069 Membership organisations and notional premiums The statutory framework 1084 Membership organisation Notional premiums 1087 BTE insurance and alternative means of funding 1088 Types of alternative means of funding 1088 BTE insurance 1089 Trade union funding Employer funding Contents xxvii

Chapter 31 Disbursements 1097 Introduction 1097 Actual disbursements 1098 Services disbursements True expenses Client's disbursements 1100 Office disbursements Expert witnesses Recoverability of experts' fees in principle Whether it was reasonable to instruct the expert Experts instructed without the court's permission Measure of experts' fees Jointly instructed experts and questions to experts Factual witnesses Conduct money The Crown Court method Miscellaneous matters concerning factual witnesses Witness and receiving party the same person Professional witnesses of fact Medical records Other types of personal records Medical agencies Copying charges postage, etc Hotel expenses Travelling expenses Disbursement funding loans Court fees 1119 Foreign lawyers 1120 Interpreters

Chapter 32 Counsel's Fees 1123 The nature of counsel's right to payment agreements with solicitors Contractual agreements with solicitors Contractual agreements with professionals other than solicitors Contractual agreements with lay clients Liability for fees as between counsel and his instructing solicitor Set-off Agents 1129 Counsel not in independent practice Not practising as a barrister Not supplying legal services Counsel's fees in general Counsel's fees between opposing parties The basis of charging xxviii Civil Costs: Law and Practice

Scope of instructions 1132 Evidencing counsel's fees 1133 The quantum of counsel's fees Brief fees The 'hypothetical counsel' test The scope of the brief fee Delivery, going short, and abatement The relevance of time The use of comparators Other factors relevant to quantum Refreshers 1145 Abated refresher 1145 Comparators (fees previously charged) Obsolete authorities 1146 Hourly charging Advices Conferences and consultations Counsel's view 1146 Skeleton arguments Other documents item Retainers (or commitment fees) Leading counsel Two counsel 1150 Informal arrangements for two counsel (devilling) More than two counsel

Chapter 33 Fixed Costs on the Small Claims Track, and Fast Track Costs 1155 Fixed commencement costs Generally Applicability Fixed commencement costs The court's discretion 1157 The amount of fixed commencement costs Fixed judgment costs Fixed enforcement costs Fixed recoverable costs Scope 1163 The amount of fixed recoverable costs Procedure and fixed recoverable Premature issue and fixed recoverable costs Fixed percentage increases and success fees Road traffic accident claims Employers' liability claims Employers' liability disease claims Costs on the small claims track General provisions 1176 Contents xxix

The applicability of the small claims restriction Unreasonable behaviour on the small claims track Fast track trial costs Scope and application The amount of fast track trial costs Power to award more or less than the amount of fast track trial costs Fast track trial costs where there is more than one claimant or defendant Low Value Personal Injury Claims in Road Traffic Accidents The effect of the RTA protocol Jurisdiction Stages at which the RTA protocol can be exited The three-stage process and the monies payable The three-stage process stage-by-stage Scale costs for claims in the a Patents Count Court Fixed Costs: HM Revenue and Customs The wording of the relevant provisions 1205 CPR Parts 45 CPR Part 45 VI 1214 CPR Part 46 Practice Direction 46 1223

Chapter 34 Points of Principle 1225 Proportionality 1225 The general policy and the proportionate management of claims The application of the general policy to the assessment of costs Estimates of costs 1234 Estimates on a between the parties basis The duty to provide an estimate Procedure for bringing an estimate in 1236 Procedure where an estimate has been exceeded 1236 The effect of exceeding an estimate where there has been no reliance 1236 The effect of exceeding an estimate where there has been reliance 1237 The failure to give a estimate on recovery of costs between opposing parties 1238 Conduct and misconduct 1239 Conduct as one of the seven pillars 1239 Conduct in general 1240 Pre-issue conduct and pre-action protocols Exaggeration 1243 Misconduct 1247 Apportionment 1253 Layer one: solicitor and client apportionment 1254 Layer two: the incidence of costs Layer three: the meaning of the order Layer four co-litigant apportionment xxx Civil Costs: Law and Practice

The interaction of the four layers 1255 The layers in practice, and the doctrine of equal apportionment 1256 Deviation from equal apportionment Discretionary matters 1259 The role of costs sharing agreements 1260 Legislative fetters on the recovery of costs

Chapter 35 Value Added Tax 1265 Liability for VAT 1265 Whether VAT is chargeable by the receiving party's lawyers 1265 The time when VAT falls due: tax points 1266 Rates of VAT 1267 Expenses and disbursements 1269 Medical and dental reports and records 1271 Medical and dental experts Medical and dental records 1272 Medical agencies 1272 VAT between opposing parties 1273 General principles 1273 Reasonableness 1274 Changes of the rate of VAT 1274 Wording of relevant provisions 1278

Chapter 36 Interest Between Opposing Parties 1283 Judgment debt interest 1283 Layer one: jurisdiction and principle 1284 Layer two: the date upon which interest begins to run 1286 Layer three: the rate of interest Layer four: discounts and adjustments 1291 Pre-judgment interest Layer one: jurisdiction and principle 1292 Layer two: the date upon which interest begins to run 1294 Layers three and four: the rate of interest and discretion generally 1295 Special situations Deemed costs orders 1300 Reversal of costs orders on appeal Interest on overpaid costs Advance and multiple orders for costs Interest payable out of a fund 1302 Interest on the costs of assessment Contents xxxi

Part Particular Circumstances

Chapter 37 Contracts and Trusts 1307 Costs payable pursuant to contract Basic principles 1307 Basis of assessment 1308 Precedence of other enactments Orders made in ignorance of contractual provisions 1309 Trustees 1310 Costs incurred by trustees Costs incurred by beneficiaries 1314 Costs of proceedings as between trustee and beneficiary (and others) 1314 Pre-emptive orders Costs payable out of a fund 1319

Chapter 38 Specific Types of Party 1323 Children and mental incapacity 1323 Children 1323 Mental capacity 1332 Litigants in person Jurisdiction 1336 Quantum 1338 Lawyers acting for themselves and on behalf of their firms Public bodies and the Crown

Chapter 39 Specific Types of Litigation 1351 Group litigation Terminology 1351 Initial considerations Liability, retainers and apportionment Quantum 1359 Procedure 1362 Representative claims Derivative claims Public law and judicial review Application for permission Acknowledgements Discretion generally 1367 Interested parties 1368 Conclusion of proceedings 1368 Relevant extracts from the CPR and practice directions CPR, r 19.8A, rr and r 48.6A 1369 CPD, art 19.5 1372 xxxii Civil Costs: Law and Practice

PD 19B 1372

Chapter 40 Costs Against the Courts Service 1373 The power to make payments The exercise of discretion Principles of Good Administration Principles for Remedy Principles of Good Complaint Handling 1376 Quantum 1377 Procedure 1378

Chapter 41 Litigation Funding 1381 Public policy and relevant history History and comparative law 1382 Future developments 1386 Regulation 1386 Blurring of the boundaries 1388 Alternative business structures Present legislative control Availability and practice Minimum values Acceptance of cases Remuneration ATE insurance 1391 Independent legal advice 1392 Control of litigation Contractual provisions

Chapter 42 The Jackson Reforms 1395 History and implementation Interaction with other changes in the legal services industry Alternative business structures 1398 'Compensations culture' and referrers Reforms relating to the conduct of substantive litigation Case management Costs management and budgeting Offers and Part 36 1405 Qualified costs shifting ('QOCS') 1407 Funding reforms 1408 The 'myth of full costs recovery' Damages-based agreements 1409 Litigation (third-party) funding Contingency legal aid and supplementary legal aid 1412 Reforms relating to the amount of costs: Additional liabilities 1413 Contents xxxiii

Fixed costs Hourly rates Reforms relating to costs procedure Bills of costs 1418 Detailed assessment: procedure, points of dispute and replies Summary assessment Proportionality Miscellaneous matters Increase in general damages How to prepare for the reforms Preparing to begin the review 1422 Starting the review 1423 Marshalling the data The damages-based agreement (DBA) chart 1429 Fixed costs chart 1432 Commercial evaluation chart Consumer evaluation chart 1436 Personal injury evaluation chart General implementation chart 1439

Chapter 43 Precedents 1443 Certificate in accordance with CPD, art 20.6 1443 Statement in compliance with CPD, art 32.5 1443 Points of dispute and Replies 1444 Costs sharing agreement 1449 Statement requesting relief from sanctions Particulars of Claim for unpaid solicitors' fees 1454 Particulars of Claim for unpaid costs draftsmen's fees 1455 Defence to claim for unpaid solicitors' fees and counterclaim for an assessment 1457 Part Requests for further details in respect of additional liability 1459

Chapter 44 Tables and Figures 1461

Index 1489