LawyerJULY/AUGUST 2014 | ISSUE 4 Costswww.costslawyer.co.uk

Opportunity knocks A new profession takes shape

Practice rights ACL faces down ‘malevolent’ threats Transferring CFAs Assignments versus novations explained Changing times New CPR 3.8 analysed ACL conference Manchester Friday 24 October Hilton Manchester Deansgate SAVE THE DATE

Confirmed speakers include: ■ Costs Judge Master Leonard ■ Alexander Hutton QC Hailsham Chambers ■ Regional Costs Judge Besford North Eastern Circuit ■ Jonathan Dingle London School of Mediation

Confirmed topics include: ■ New model form bill of costs – latest developments ■ The new guideline hourly rates – implications for costs lawyers ■ ADR and mediation ■ The latest legal developments For more information, ■ The future of the costs lawyer profession please email Diane Pattenden ■ Panel discussion at [email protected] or call the ACL office on0203 174 0967 03 CostsLawyer Editor ’s comment JULY/AUGUST 2014 | ISSUE 4 y first two of Costs Lawyer. Our cover story examines Editor Richard Parnham months as editor the ACL’s recently refreshed qualification, [email protected] Mof Costs Lawyer and highlights its new focus on issues such have been a whirlwind of as advanced civil procedure and business activity. In my first week, management. Useful insights are also provided Chairman I was privileged to meet in our final Annual Conference report beginning Sue Nash Vice Chairman a large cross section on page 30, which explores the possible future Position vacant of the profession at the career options open to costs lawyers. Treasurer ACL Annual Conference. To help our readers make sense of this brave Stephen Averill Then, just as our printing presses were about new world, we’ve decided to extend the focus of Secretary to roll, the Court of Appeal heard three Costs Lawyer magazine beyond the black letter Claire Green combined cases on the proper application law aspects of professional life, and also include Council members of the Mitchell principles regarding trivial market developments within the profession – James Barrett breaches of timetables – but, frustratingly, effectively, the practicalities of running a Robert Connelly reserved its judgment. We’ll therefore modern cost law practice. And, as part of Robert Cook update our readers on the outcome of this this evolution, I’d encourage firms to let me David Cooper important ruling via our e-bulletin service. know about their innovations, appointments Francis Kendall and expansions. Why not drop me a line at Jon Lord This sense of dynamism is carried across [email protected]? Chief Executive Officer into several articles contained in this edition Richard Parnham, Editor Maurice Cheng All other enquiries to Diane Pattenden [email protected] Contents

Closing date for September/October issue will be 11 July 2014 Visit the ACL website at www.costslawyer.co.uk

Costs Lawyer is edited and designed by Archant Dialogue, Prospect House, Rouen Road, Norwich, NR1 1RE. Tel: 01603 664 242 Production Editor Louise Hoffman Designer Deb Murray Ad Production Controller Charlotte Riches 22 Time extensions 24 Costs orders 26 Transferring CFAs Account Director Catherine Goad Creative Director Nick Paul Publishing Director Zoë Francis-Cox Regulars Features ■ 26 Delicate manoeuvres Material submitted for publication is ■ News ■ A new profession welcomed by the editor. He is, however, 04 10 Transferring CFA files by unable to guarantee publication in any takes shape ■ 09 Opinion novation or assignment specific issue and reserves the right to The newly revised ACL amend or edit any article submitted. All ■ advertisements and contributions are ■ 16 Regulatory costs lawyer qualification 28 Collaborations accepted on the understanding that the and CCMS ■ The next generation authors are responsible for opinions ■ 17 Legal update 14 An update from the expressed and these do not necessarily Reflecting on student years ACL’s Legal Aid Group represent the views of the Association of ■ 34 Profile Costs Lawyers or Archant Dialogue, who do ■ 22 Changing times not accept any liability for any error, omission Michelle Farlow of Deborah ■ 29 Family matters or misstatement by any contributor in any Burke Consulting Time extensions following Expert report costs in material published. Material in this journal is the amendment to CPR 3.8 the new family court the property of the Association of Costs Lawyers and cannot be copied without the ■ 24 Double trouble ■ ACL Conference written permission of the editor. 30 Filing budgets late – and Proportionality, photos and then losing the case COVER PHOTO: ©IKON IMAGES/ALAMY the future of the profession

JULY/AUGUST 2014 | ISSUE 4 04 05 News News

National costs law practice makes an NEWS IN BRIEF Mitchell: CoA reserves judgment First fundamental dishonestly QoCs Costs lawyers looking for definitive the Bar Council as one of the their Lordship’s responses to the case claimed innovative push for pricing work guidance on how to deal with minor interveners in the case, urged arguments put to them, may wish 9 Gough Square barristers John Foy QC and Simon case management breaches practitioners seeking relief to review Gordon Exall’s Civil It was a key theme at the recent anonymised its survey data, Bridle have acted on what is post-Mitchell will have to wait a little from sanctions to obtain an Litigation Brief blog, where key ACL conference – how costs Burcher Jennings then aims to believed to be the first finding longer, after the Court of Appeal adjournment. “The way Mitchell aspects of the Court of Appeal lawyers can diversify their revenue produce half-yearly reports, of fundamental dishonesty opted to reserve its judgment on is being applied will change,” he hearings are summarised. streams, in the face of challenges where its findings are analysed. under the newly qualified three joined cases. The three predicted via Twitter, within such as automation. Now one of The scale of the research is one-way costs shifting (QoCs) disputes, Decadent Vapours Ltd v minutes of the reserved judgment the largest employers of costs ambitious – the costs law practice provision of CPR 44. In Gosling v Bevan, Denton & Ors v TH White Ltd announcement being made. Earlier, lawyers in the country has firmly has offered the first 500 law firms Screwfix and Anr, an unreported & Anr and Utilise TDS Limited v Friston had tweeted a comment grasped this nettle in a determined who respond to its survey a year’s Cambridge County Court case, Davies, were heard by Master of from Lord Dyson MR, stating: the pair persuaded His Honour effort to position itself as a law firm free access to its findings. the Rolls Lord Dyson, Lord Justice “If Mitchell is being interpreted as Judge Moloney QC that the pricing, as well as costs drafting, Explaining the Burcher Jennings’ claimant, Mr Gosling, had Jackson and Lord Justice Voss on deriving the court of discretion, consultancy service. research initiative, firm CEO behaved in a fundamentally 16 and 17 June 2014. then the Court of Appeal needs The practice in question, Martyn Jennings said that the dishonest manner for the In the absence of any immediate to do something about it.” Burcher Jennings, only came into whole issue of legal pricing had that a similar scheme has now Burcher Jennings has also purpose of QoCs. Consequently, Court of Appeal guidance, Kings Practitioners wishing to gain existence in April this year, become increasingly important to operated successfully in New confirmed the appointment the claimant was required to Chambers’ costs counsel Dr Mark insights into the nature of the following the union of law firm law firms in recent years, as clients Zealand for five years. of former Co-operative Legal pay Screwfix’s costs on an Friston, who appeared on behalf of claimants’ submissions, and pricing consultancy Validatum and become more cost-conscious and Perhaps not surprisingly, given Services director Christina indemnity basis. On a matter Jennings Costs. In May, the firm demand a wide range of price and the current lack of available Blacklaws to its five-member of fact, the dishonesty did announced that it was undertaking payment options. Yet, despite market data, Mr Jennings advisory board, which also not arise in relation to Mr Gosling’s injury itself – rather Guideline hourly rates: close, but not yet finalised detailed research into law firms’ these demands, many firms are suggested that research includes Professors Stephen that he exaggerated the extent charge-out rates, with the struggling to make informed conducted by Burcher Jennings Mayson and Dominic Regan. of his on-going symptoms. The Civil Justice Council’s costs and submitted to the Master delay in submitting the report to intention of using the market decisions about how much they to date suggests large disparities Explaining the rationale for hiring Yet, while the dishonesty committee came perilously close of the Rolls, Lord Dyson, for the “scale and complexity of the intelligence gathered to advise should charge for their services. between law firms regarding how Blacklaws, Martyn Jennings said: only accounted for half of Mr to missing yet another self- his consideration. task” and “the need to reach firms on their pricing strategies. In contrast with contentious much they charge for their “Christina has spent her career at Gosling’s claim, HHJ Moloney imposed deadline regarding Deadlines to produce the agreement as far as possible Conducted via a short online work, where law firms’ charge-out non-contentious work. Yet, if the cutting edge of developments QC decided that the claimant’s its guideline hourly rates report have repeatedly on some very difficult issues”. questionnaire, the Burcher rates are largely determined by firms are able to get their pricing in the legal services market, with dishonestly was sufficiently (GHR) report – but finally, slipped in recent months: At present, no date has been Jennings survey investigates law the courts, there is currently a strategies right, Mr Jennings experience from community law serious to render his entire an important landmark first from January 2014, set for publishing the costs firms’ pricing arrangements in lack of accessible market data points out that they can often firm, to hybrid, to virtual, to ABS. QoCs “shield” useless. has been reached. and then from mid-April. committee’s recommendations. It relation to several key variables, regarding appropriate fees for achieve substantial increases Couple that with the considerable Costs lawyers welcome In a statement issued on The deadline was then is anticipated that the committee’s including areas of law, location non-contentious work. “Such in their profitability – in some insights her representative role at buffer direction 2 June, costs committee extended once again report will be published at the same and levels of qualification and information is desperately cases by 25 per cent. the Law Society has given her and, Costs lawyers from across the chairman Mr Justice until the end of May, time as Lord Dyson’s final decisions experience. Having collated and needed,” he said, pointing out In a separate announcement, for me, it’s a no-brainer.” country have welcomed the 5 Foskett confirmed that which was met by the on what the GHR should be, and the June update to CPR 3.8, which GHR recommendations narrowest of margins. dates from which the new rates will now allows parties to agree time had now been finalised Foskett J attributed the take effect. extensions of up to 28 days NEWS IN BRIEF Just Costs expands again without the need to apply to the court – as long as certain Masters promotes partners John M Hayes trio in Midlands One of the largest costs law conditions are met. Runcorn- Masters Legal Costs Services has “Refusal to mediate” costs case reported spin-off practices in the country, Just based Sterling Costs described promoted six members of its team Three former costs practitioners Costs, has launched its fourth the development as “a good The costs consequences of accordance with an alleged Finding in the claimant’s favour, to full equity partnership status, have broken away from John M Hayes day for common sense”, while taking the firm’s equity partner office in Leeds, to add to its failing to take part in mediation agreement. HHJ Waksman dismissed the to form a new Chesterfield- and national firm Kain Knight was headcount from two to eight. portfolio of offices in Manchester, have been highlighted in the In delivering his ruling, His validity of various claims made Derby-based practice, Bidwell among those celebrating a The newly promoted partners London and Chesterfield. recent High Court case of Phillip Honour Judge Waksman QC, by the defendant, justifying its Henderson, following a decision “happy bufferday”. are: Carina Patterson, David to return to their home region. The new Leeds office will be Garritt-Critchley & Others v sitting in the Chancery Division, refusal to take part in ADR. These Platnauer, Tony Hale, Francis Costs lawyer Mark Bidwell was headed by Chesterfield eastern Andrew Ronnan and Solarpower Manchester District, awarded claims included the suggestion Kendall, Thomas Spanyol and previously the manager of the regional manager Adam Oldale, PV Limited [2014] EWHC 1774 (Ch). indemnity costs to the claimant, that there was no middle ground Ian Walton. Amersham branch of John M Hayes, supported by costs lawyer Nicola Although the costs hearing after concluding that the between the parties; that the PI Costing relocates while Rebecca Bidwell managed the Brett, who has relocated to the Correction took place on 4 February 2014, defendant’s persistent refusal parties disliked and distrusted On page 28 of the May/June PI Costing has relocated its firm’s London operations. The third city from Chesterfield. a summary of the case has to mediate was unreasonable. each other; and that both sides edition of Costs Lawyer, proper Manchester office from Hardman partner at Bidwell Henderson, Ann The development is part of Just attribution should have been only recently been published Judicial antipathy towards parties were too far apart for a settlement Street to larger premises in Henderson, also previously worked at Costs’ ambitious expansion given to Melanie Vickery and by Panonne, the firm that acted who fail to engage in mediation has to be reached. The parties could Bexley Square in Salford. The John M Hayes’s central London office. programme, which has seen the not Michelle Vickery, as stated for four claimants in the case. long been made clear, following not know whether they were too development comes just three Bidwell Henderson is currently firm hire 29 new staff in the past six in the article. We apologise to The dispute centered on the the 2004 Court of Appeal ruling in far apart unless they sat down and months after the practice opened recruiting for experienced costs months. A further 30 new recruits Ms Vickery for the error. defendant’s failure to allocate Halsey v Milton Keynes General explored the possibility of a a London office. lawyer personnel. are planned for the coming months. shares in the company in NHS Trust. settlement, HHJ Waksman said.

ISSUE 4 | JULY/AUGUST 2014 JULY/AUGUST 2014 | ISSUE 4 06 07 News News

Consumer contract No plans to scrap CPD, NEWS IN BRIEF ACL seeks to head off Cook and Lord win ACL poll says costs regulator Robert Cook and Jon Lord have regulation warning been elected to the ACL’s “malevolent” rights challenges governing council. Cook works at Southport-based Ultimate New consumer protection its total project budget or vary its Costs, while Lord works at The ACL has responded to several However, Mr Mallalieu said however, that until entity regulation regulations may affect the hourly rates – it must seek express London-based Cost Advocates. “malevolent” challenges to costs the Legal Services Act 2007 is introduced, challenges could recoverability of solicitors’ fees permission from the client to do so. The election followed the lawyers’ right to appear in court specifically exempts costs lawyers continue and judges may have unless strict conditions are met, In his guidance note on CCR retirement of former ACL by obtaining counsel’s opinion from having to work in authorised concerns until the position is experts have warned. 2013, 4 New Square’s Nicholas president Murray Heining and the confirming that its members have bodies until entity regulation is properly explained to them. The warning follows last week’s Bacon suggests any solicitor who ACL’s decision to expand its rights to conduct costs litigation introduced. The CLSB is currently ACL chairman Sue Nash says: enactment of the Consumer fails to provide such information council to nine members. Cook and to act as advocates in costs consulting on introducing a scheme “We decided to take advice after Contracts (Information, may be exposed on the grounds admitted his win had come as a proceedings – including when of entity regulation next year. several malevolent challenges to “big surprise”, but he thanked all Cancellation and Additional of breach of contract and/or working in conjunction with In order to ensure their position is costs lawyers’ right to appear in those who had voted for him Changes) Regulations 2013 misrepresentation. Bacon also – especially given the high calibre unregulated costs specialists. as robust as possible, Mr Mallalieu’s court. These challenges go to the (CCR 2013). CCR 2013 applies to speculates that third parties may of the seven other candidates. The advice given by 4 New advice stated that costs lawyers very route of our raison d’etre. agreements entered into between also be able to invoke rights granted Lord also expressed his thanks to Square’s specialist cost counsel should have systems in place to “We are keen to hear from any traders – thought to include law under CCR 2013 if challenging an the other candidates and to all Roger Mallalieu is unambiguous. ensure that any non-authorised costs lawyers who have, or are firms – and consumers from inter-partes costs bill. those who voted. “I look forward Costs Lawyers have an absolute persons they work with are not currently experiencing, any 13 June 2014 onwards. The new The new CCR 2013 regime also to working with the Council and right as conferred upon them engaging in reserved activities. challenges to their audience rights. regime replaces the Consumer updates consumers’ obligations the wider membership to take by statute to conduct all costs In relation to the right to If appropriate, the Association Protection (Distance Selling) to pay for solicitors’ early-stage the ACL forward in an exciting era proceedings within the limits of conduct litigation specifically, would consider being joined as an Regulations 2000 and the incurred costs, where a contract for the profession,” Lord added. their statutory powers – regardless the advice said that costs lawyers interested party to the relevant Cancellation of Contracts made for services is originally agreed ‘off of the circumstances in which they are entitled to use unregulated proceedings. It is important that a in a Consumer’s Home or Place premises’ or ‘at a distance’, and the are retained or employed. persons to assist them with tasks clear legal precedent is established of Work etc Regulations 2008. consumer then changes his or her The challenges have arisen such as drafting, correspondence, to prevent further unwanted Detailed guidance regarding mind about instructing the firm. The Costs Lawyer Standards regime in January 2013, said Entity where costs lawyers are working secretarial services, general satellite litigation of this kind.” CCR 2013 has now been produced Previously, unless agreed Board (CLSB) has confirmed she intends to watch the LSB’s in organisations that are not advice and assistance, without by a variety of experts, including otherwise, there was a presumption it has no plans to follow the response to the SRA’s proposals regulation themselves regulated and so not fearing that their litigation rights For regular news updates… the Law Society, Kerry Underwood against consumers having to pay lead of the Solicitors Regulation “with interest”. for costs authorised to conduct litigation or could be successfully challenged. visit the Association of Costs and Nicholas Bacon QC from 4 any charges incurred by the firm Authority (SRA) and abolish fixed The CLSB’s decision to not provide advocacy – mainly because What amounts to the conduct of Lawyers’ website or subscribe New Square. during the first seven days of being hours continued professional revisit its costs lawyer CPD regime practices the Costs Lawyer Standards Board litigation is likely to be narrowly to the weekly email update at Under CCR 2013, solicitors instructed, so long as the consumer development (CPD) training. has been welcomed by the ACL. (CLSB) does not yet have a scheme construed, he advised. [email protected] must make a large amount of withdrew from the contract in CLSB chief executive Lynn Claire Green, ACL Council The Costs Lawyer Standards of entity regulation in place. Mr Mallalieu acknowledged, information, such as fixed cost writing. Now, the presumption Plumbley told Costs Lawyer that member for education, said: Board (CLSB) is now reviewing estimates or charge-out rates, against recoverable expenses has the CLSB regarded costs lawyers’ “I think scrapping CPD is a the responses to its recent available to consumers before been extended to 14 days and, in CPD obligations as playing an retrograde step, especially for a consultation on how it should Obituary: Joe Locke of Williams Associates any contract for services is addition, consumers’ permitted “integral part” in the profession’s profession in turmoil following regulate costs-lawyer-led entities. agreed. That information will then method of cancellation has now practising certification process. swingeing changes to the rules The costs lawyer regulator is due to Born in Scotland in 1949, Joe the then ACLD Council, both as be treated as part of the firm’s been widened to include any ‘clear The CLSB’s reaction follows an and judicial precedent. ACL submit its recommendations to the began his career at law in 1964, ordinary council member and as retainer. In addition, if the firm statement’ – including by email. announcement made by the SRA Training will continue to expect Legal Services Board during July. dealing with general litigation honorary secretary, and was the wishes to change the nature of its Failure to provide off-premises on 21 May, in which it said that it students to acquire the requisite Under the draft proposals, many and opposing claims for costs recipient of the Chairman’s Cup retainer – for example, to increase consumers with information planned to abolish the requirement number of CPD hours and will costs law practices will be subject for a small firm of solicitors in for his services to our Association. explaining their right to cancel that solicitors undertake 16 hours’ continue to offer opportunities to entity-level, as well as individual Dunstable. After a few positions Joe loved to teach the law on is now a summary offence, with compulsory training per year. to do so.” practitioner, regulation. Sole dealing with various types of costs, be that as part of the fines of up to £5,000 for non- Under the SRA’s new plan, which will With the CLSB and SRA now practitioners, in-house costs litigation and costs, Joe began his Association’s training course, compliance now possible. first require approval from the Legal adopting contrasting approaches lawyers and mixed practices career in costs in earnest in 1975. in-house or for external clients, To help mitigate against both of Services Board (LSB), the existing on how best to ensure their already governed by other legal By 1980, he had established his and always had a friendly word for these risks, the Law Society has regime would start to wind down professions remain competent, regulators would be unaffected own costs firm, which he ran anyone in need of assistance. Joe’s produced two model documents from February 2015, with abolition all eyes at England and Wales’s by the CLSB’s plans. successfully for almost 20 years inimitable humour, generosity and that firms may wish to use. The first following in November 2016. various legal profession regulators The draft outlines CLSB’s plans before returning to an office passion for all things costs will template focuses on firms’ initial Assuming the new plan is accepted, will be on the LSB’s response to to make entities accountable for environment in 1999. Latterly, in forever be sorely missed. instructions to clients, and sets solicitors will be expected to the SRA’s plan. the actions of all of its employees 2004, Joe became a partner at Joe is survived by his doting wife, out the clients’ right to cancel their declare they have “considered their The LSB is expected to begin (not just those who are CLSB Williams Associates where, he Margaret, and son, Russell, and is agreement. The second template CPD needs” when renewing their the process of reviewing the SRA’s regulated) and for a penalty Costs lawyer Joe Locke passed always said, he spent the best deeply missed by all of his family, focuses on the cancellation practising certificate. proposals in November this year, system, including fines of up to away peacefully on 12 May 2014 years of his working life before friends and colleagues. process, and provides a model Plumbley, whose organisation with a full response expected by £4,000 and a permanent removal following a relatively short battle retiring in March 2014. cancellation form. most recently updated its CPD early 2015. of a firm’s authorised entity status. with cancer. Joe served for many years on Jon Williams, Williams Associates

ISSUE 4 | JULY/AUGUST 2014 JULY/AUGUST 2014 | ISSUE 4 08 News

Legal Aid Agency in limited NEWS IN BRIEF Cyber future for low-value civil disputes? The long-term use of the courts reprieve on local travel claims system to resolve civil disputes worth less than £25,000 has been The Legal Aid Agency (LAA) has inferring that travel time amounts LAA has urged practitioners to thrown into question, following suspended its blanket ban on to a travel expense. refer to the costs assessment the decision by the Civil Justice reimbursing legal representatives Until it restores its 10-mile guidance to help them judge Council (CJC) to explore the for local travel; however, the expenses ban on 1 September, whether travel time and expenses concept of online dispute reprieve, announced on 22 May, the LAA will now revert to are reasonable. resolution (ODR). ODR involves is only temporary. The strict new assessing time and expenses by The LAA has now agreed that the resolution of disputes across regime will restart for all legal aid reference to the reasonableness anyone who has an assessment the internet, using techniques certificates issued on or after of costs, so long as the expenses reduction in relation to local such as e-negotiation and e-mediation. The new advisory 1 September 2014. claimed are supported by travel expenses can now submit group will be chaired by Professor Historically, it has not been evidence. However, in itself, an appeal in the normal manner. Richard Susskind OBE, a long-term possible to recover expenses for the fact that travel took place However, the LAA has also and influential advocate of the use local journeys – typically within within 10 miles of the court will stated that it has no intention of computer-aided-justice. 10 miles of the court visited. Here, not automatically result in claims of reimbursing for claims where Professor Susskind has been IT the guiding principle, which the for travel expenses being rejected. an appeal would now be out advisor to the Lord Chief Justice of LAA has followed within its own During this interim period, the of time. England and Wales since 1998. regime, is contained in paragraph Fixed cost medical 5.22 (3) of the Practice Direction reports considered to Rule 47.6 CPR. This advice The Civil Procedure Rule states that the exact definition of Committee is now considering a what amounts to ‘local’ is a matter plan to update the RTA Protocol for the court to decide, depending and various reforms to Part 36 on local circumstances. and 45 of the CPR, following its recent consultation on fixed-cost Yet, although the judicial medical reports for soft tissue position on this point has not injuries – typically whiplash claims. changed in recent months, costs The consultation closed on lawyers have begun to report that 28 May, and the CPR Committee the LAA has started taking a is due to finalise its proposals at its tougher line when carrying out July meeting. It is anticipated that its own assessments – treating any CPR or RTA Protocol changes the 10-mile guideline as an will be implemented by October. absolute minimum distance New publication permitted for claiming travel Class Legal, publisher of Costs expenses, rather than a rebuttable Law Reports, has published the presumption against a successful 2014-2015 edition of its Costs expenses claim. & Fees Encyclopedia. The Concerns have also been raised 433-page book, which costs £60, will be reviewed in the about whether the LAA is taking September/October edition an unduly harsh approach by of Costs Lawyer magazine. disallowing claims for travel time,

Roll-out of troubled CCMS electronic bill of costs continues The Legal Aid Agency’s (LAA) for several days during its pilot area – after which date use of to act as an unofficial software controversial client and cost phase in the north east of England. CCMS remains voluntary for tester for the LAA. management system (CCMS) In addition to the north east, three months only. A key point made by Black – effectively an electronic bill CCMS has now been rolled out to At the recent ACL Annual at this meeting was that, once of costs for legal aid matters – firms across Manchester, Leeds Conference in London, Ian Black firms agree to switch to CCMS, continues to be rolled out across and the Midlands, taking its total from Ian Black & Associates they are unable to withdraw from the country, despite its tendency user base to more than 155 offered a downbeat assessment it. This is something costs law to crash on a regular basis. practices. Participating firms of his experience of using CCMS practices should bear in mind The system most recently failed are typically given 10 days’ notice during its pilot phase, suggesting as the CCMS roll-out continues on 6 June, after previously failing of the system’s launch in their he had effectively been forced across the country.

ISSUE 4 | JULY/AUGUST 2014 09 Opinion Difficult times ahead The Mitchell fall-out is challenging for costs lawyers, but legal aid reforms pose a threat to society as a whole, says ACL chair Sue Nash

s we all move into the summer litigation, and of course these changes affect a of Justice and I will report further on both of months with the prospect of considerable proportion of our membership. these initiatives in due course. A well-deserved holidays, I find However, the legal aid aspects of the reforms Concerns about access to justice were myself reflecting on what a busy and have, arguably, affected the general population expressed by CILEx president Stephen Gowland important year 2014 is turning out to be. (as well as our legal aid group members) more. in his speech at the CILEx Annual Presidential Indeed, I believe that the legal aid aspects of the Dinner, which I recently attended. Addressing The fallout from Mitchell has seen a raft of reforms have had a profound and damaging principal guest Chris Grayling, he said: “We are cases on the issue of compliance with rules effect on access to justice. not convinced with how on-board you are with and court orders, and, as I write, three cases I have recently had cause to re-read the Civil the principles described in Magna Carta. Legal are shortly to be heard in the Court of Appeal Justice Council’s report on access to justice aid, judicial review and many other instruments which, it is to be hoped, should give some for litigants in person, which was published in are an expression of a principle that has defined guidance and clarity. Still to come are the November 2011 – well ahead of the reforms our country – that of access to justice.” I echo eagerly awaited announcements about that were brought into being in April last year. and support Stephen’s concerns. The Lord guideline hourly rates and the new format In the overview and executive summary, the Chancellor’s wide-ranging response/speech bill of costs, both of which are likely to have a report states: has been widely reported in the legal press. profound effect on our future as costs lawyers. “It is a reality that those who cannot afford Staying on the same theme, can I urge you All news will be reported via our weekly legal services and those for whom the State all to watch and listen to the campaign video e-bulletin before being analysed in more detail in will not provide legal aid comprise the larger produced by the Justice Alliance, which can be the next issue of Costs Lawyer. Our new editor, part of the population of England and Wales.” found at www.justiceallianceuk.wordpress.com? Richard Parnham, is going to have a busy time! This was shown at the start of the Legal Aid The last few months have also seen a huge Lawyer of the Year Awards, which was attended amount of work undertaken by various council I believe that the by the chairman of the ACL Legal Aid Group, committees, and of course we have had our legal aid... reforms have Paul Seddon. The evening marked the annual conference. You should all have achievements of publicly funded lawyers received the email with the special conference had a damaging effect such as Elkan Abrahamson, who has worked report attached, and the conference is further for Hillsborough families and campaigners discussed in this issue. on access to justice for two decades, and was instrumental By the time you read this there will be two in obtaining the second inquest into the further additions to the ranks of the ACL Council, The National Pro Bono Unit, which brings Hillsborough Disaster. We all owe a debt including one member who will have qualified together the Bar Pro Bono Unit, Law Works of gratitude to lawyers like him. within the last three years. The future of our and others, undertakes sterling work in helping profession lies with our trainees and young people who might otherwise have no access And finally... costs lawyers and they will now be guaranteed to justice. This work is backed up by court As I mentioned at the conference, we want to representation and a voice in the decisions that support services that exist in many courts. encourage the setting-up of regional groups, the Council take on behalf of the Association. Maurice and I have been in discussion with and one, in Leeds, is already being put together the National Pro Bono Centre to see how cost by Nicola Brett and Andrew Macauley. If anyone Access to justice lawyers can assist their work and the people else is interested in setting up a group in their Most articles and commentary on the first year they represent. We have also spoken to the area/region please contact me or Council of ‘Jackson’ have focused on the changes to civil Citizens Advice Bureau in the Royal Courts member James Barrett. ■

JULY/AUGUST 2014 | ISSUE 4 10 11 Training Training

years ahead. “The new course includes Another innovation in the new qualification is teaching practice management skills is now mediation, legal project management and the introduction of a specific module covering seen as a core competence. Additionally, it is other aspects of professional life that we business management – effectively, how to run hoped that these skills will widen costs lawyers’ believe will come to the fore in the future,” a law practice. This module will feature a strong talents still further, enabling them to advise law A new profession she says. And practitioners certainly seem to element of regulatory compliance, but also firms on both profitability and regulatory support this new focus. “Costs management covers issues such as firm marketing and compliance issues. and cost budgeting are a real opportunity for business development. “I think the new qualification’s focus costs lawyers – as is major project work,” says The logic for this approach is self-evident: on business management is a fantastic Philip Bowden, senior partner of Masters Legal with many costs lawyers opting to work on development,” says Nick McDonnell, head of takes shape Costs Services. a self-employed basis, often from home, education and training Continued overleaf… ✒ After a year-long hiatus, the ACL’s costs lawyer qualification reopened for business on 1 May 2014. Richard Parnham explains the new regime, and gauges the profession’s reaction to its key components

n retrospect, it was probably inevitable Of course, for costs law practitioners, the that the costs lawyer qualification would year-long hiatus that occurred while the costs Irequire reform to ensure the profession law qualification was re-written to encompass was equipped to cope with recent market these updates was less than ideal. In some developments. “The whole role of the costs cases, firms now find themselves facing a lawyer profession has altered beyond hefty one-off cost to pay for the backlog of recognition post-Jackson,” says Claire candidates they wish to put through the revised Green, ACL Council member for education. course – in the case of Kain Knight this amounts Richard Parnham “Previously, the courts had a laissez-faire to around 25 candidates. is the new editor approach to costs budgeting and However, to some extent, the alternative of Costs Lawyer. timetabling. Now, and especially post- approach of modifying the course ‘on the fly’ He has previously Mitchell, that attitude has had to fall was equally unattractive. Following the Legal written for by the wayside. The new costs lawyer Education and Training Review (LETR), all numerous legal qualification teaches students that the branches of the legal profession are now magazines, court timetable is now sacrosanct.” under pressure to reform their legal education including The regimes – while simultaneously requiring European Lawyer, Indeed, the impact of the Jackson reforms – students to undertake legacy courses that the Solicitors and also Mitchell – is reflected in several may soon be discontinued once the reform Journal and the syllabus changes to the updated costs lawyer International Bar qualification. As before, students will continue Association’s to receive basic training in civil procedure The new course includes mediation, Global Insight during their first year of study. However, this legal project management and other introductory course will then be supplemented with more advanced training on explicitly aspects of professional life that we believe costs-specific issues during students’ final year of academic study. In future, a detailed will come to the fore in the future understanding of the case law surrounding

ALAMY these issues will be expected. process is complete. By contrast, the new / Separately, and in recognition of costs costs lawyer qualification has been designed lawyers’ rights of audience following the to be LETR- and Jackson-compliant from Legal Services Act 2007, basic advocacy the outset. Did you know? and negotiation has now become a first-year Indeed, for the ACL’s Claire Green, one It took nine module. Going forward, it is anticipated that of the key benefits of the new costs lawyer researchers almost advocacy and negotiating skills will form the qualification is that it is forward looking, with a two years to produce cornerstone of the costs law profession’s view to equipping students with skills that are the LETR report.

ILLUSTRATIONS: ©IKON IMAGES ©IKON ILLUSTRATIONS: key competencies. likely to become increasingly desirable in the

ISSUE 4 | JULY/AUGUST 2014 JULY/AUGUST 2014 | ISSUE 4 12 13 Training Training

at Just Costs. “Gone are the days when “The new regime will help to ensure that box, right). Legal aid is not included as a Costs law qualification – key components practitioners only had to concern themselves students are engaged with the course materials distinctive practice topic in the students’ third The new costs lawyer Unit one modules Unit two modules Unit three modules Unit three modules with providing the client with a legal service. throughout their studies,” says Kirsty Allison year – instead, this subject is now subsumed qualification – overview (all compulsory) (all compulsory) (compulsory) (optional) That’s obviously still very important, but these from Coventry University College, who within a wider compulsory ‘funding’ module, • The course is provided by ACL Training, days running a practice is just as much about helped devise various aspects of the which is studied by all students in year two. • English legal system, • Law of contract • Civil procedure • Personal injury/ a subsidiary of the ACL. making money and being profitable. These two revised qualification. “This approach is Of all the aspects of the new training regime, legal method and • Law of torts (advanced) clinical negligence • The course comprises two key issues go hand in hand.” more regimented than before, but the key the issue of optional modules has arguably legal skills • Solicitor and • Business and costs components: three years’ academic Indeed, even costs lawyers who work objective is that students should complete sparked the greatest debate among costs • Professional ethics client costs management • Criminal law distance learning, supplemented by in-house at large law firms can see the benefit their assignments when the content of each lawyers. Some query the benefits of early • Professional • Costs in • Professional and costs three years’ work-based learning. of giving their trainee costs lawyers exposure module is still fresh in their minds.” specialisation: “If you’re not exposed to development special courts development • Land law and costs • The first year of the course costs £1,400 to this issue. “If learning about business something, then you don’t know whether you’ll planning • Legal accounts planning • Company and plus VAT, with a similar commitment development means our trainee costs lawyers like it,” observes Just Costs’ Nick McDonnell. (foundation) • Funding (legal aid commercial law required for years two and three. can come up with useful new ideas, that would Gone are the days Others, such as Annette Livingstone from • Civil procedure and other) and costs • The course is broken down into three be beneficial to our business,” says Ian Gilbert, Annette Livingstone & Associates, welcome (foundation) • Family law annual units, with each unit comprising costs law team leader at Irwin Mitchell. when practitioners only this development, because the new regime • Costs pleadings and costs six modules. During year three, half of While several components of the revised had to concern themselves allows students to “pick their courses and other process the modules studied are optional. costs lawyer qualification are new, other according to the work they do and the documentation Candidates can choose between three aspects of the previous course have been with providing the client career they intend to follow”. • Advocacy and of five practice-area-specific options. retained – albeit with some modifications. In truth, it is likely that the optional modules negotiation skills • Each module has its own tutor-marked As before, the new course is studied via a with a legal service… that students select will, at least to some extent, assessment, which must be completed series of standalone modules, however there these days running a simply reflect their employers’ specific focus, at the end of each module. In addition, is now a greater emphasis on the continued either at a firm-wide or office-specific level. is open to people from a diverse range of track – effectively ‘growing its own’ costs students will be required to sit one exam monitoring of students’ progression practice is just as much “We’ve always tried to give everyone a bit backgrounds, both graduate and non-graduate. lawyer apprentices straight out of school. and take part in one practical seminar throughout their period of study. Previously, of a variety, and the chance to experience In this respect, the revised qualification is firmly But, anecdotally, there appear to be few signs each year. students were given all course materials at the about making money everything,” observes Kain Knight’s Matthew ahead of the LETR-inspired curve, which aims that the profession is moving in that direction. • Students must successfully complete start of each academic year, and effectively Kain, “but, in reality, our firm’s specialisms are to encourage greater social mobility within the Of those firms interviewed for this feature, each year’s study before they will be given several months to complete their and being profitable dictated by the work that clients send us. Our legal profession. The flexibility of the new several said they planned to continue with allowed to proceed to the next phase of assignments. Now, students will be required Canterbury office is more family oriented, while course is maintained by replicating many their preferred option of supporting degree- their studies – although one resit per to submit coursework every three-to-seven After studying for the course’s foundation Bishop’s Stortford tends to focus on both elements of a law degree or post-graduate legal educated employees through the costs lawyer year is permitted. The pass mark for all weeks, depending on the length of individual modules in years one and two, students will, for claimant and defendant personal injury work. qualification for non-graduate students, while qualification process – mainly because they assessments is 50 per cent. course components. There will also be one the first time, be offered the chance to choose London, meanwhile, is more commercially allowing exceptions from various modules for had such a large pool of suitably qualified • The first student intake for the new compulsory practical seminar per year, and between three out of several possible modules based.” Irwin Michell’s Ian Gilbert makes a similar candidates to choose from. qualification will commence their one exam, which features elements of each to study, in addition to the three compulsory point: “As a firm, we focus on personal injury, Nevertheless, a handful of firms have studies in September 2014. module previously studied. ones. Each of these modules has a strong Court of Protection and commercial work – We are quite begun experimenting with the non-graduate practice area focus, albeit with a costs law twist but don’t have a criminal practice,” he says. alternative, with the option of supporting their (see ‘Costs law qualification – key components’ Although the reworked costs lawyer vociferous about putting most promising recruits through the costs qualification involves regular assessments, lawyer qualification process in due course. those responsible for devising the new syllabus our employees through the For example, Compass Law has already gone decided as a responsible employer that it is have been at pains to ensure the course costs lawyer qualification. down this route, with one non-graduate due to our responsibility to take a different tack,” says continues to allow students to juggle work complete a final costs law exam later this year. Birmingham regional manager, Philip Morris. and study. To aid this objective, many aspects It’s a professional standard “If one of our non-graduate employees can “We are offering our recruits the opportunity of the revised qualification will now be delivered demonstrate an aptitude over a period of to get on the job ladder straight away.” online, via a bespoke portal. that we should be seen time, I don’t think the absence of a degree With the new costs lawyer qualification now Effectively, the portal will act as a single point to meet should be a bar on them progressing a future firmly Jackson- and LETR-assured, there is a of delivery for much of the training programme, for themselves,” adds Tony Armstrong, widespread recognition within the sector that hosting webinars, podcasts and those weekly Compass Law’s head of costs drafting. students graduating from the revised course tutorials that take place online. The portal will those who already possess legal qualifications “As a firm, we are quite vociferous about will be better trained than ever before. Indeed, also act as a repository for recordings of – typically a law degree, the bar professional putting our employees through the costs the qualification is arguably so useful that the various ACL-sponsored events. For example, training course, the legal practice course or lawyer qualification. It’s a professional ACL is now considering whether to specifically the ACL’s Manchester Conference, due to a CILEx level six higher diploma in law and standard that we should be seen to meet.” target other legal professionals who wish to take place in October, will include a session practice. At present, around 50 per cent Elsewhere in the costs lawyer market, John M learn more about costs budgeting or legal delivered by the London School of Mediation. of costs lawyer students are graduates. Hayes announced a plan to recruit 10 A-level project management. It is anticipated that this presentation will be Given the choice of recruiting candidates students across its 11 offices as part of its “With the new budgeting and sanctions recorded and uploaded for students to review without any formal legal qualifications, one in-house training programme in April this year. regime, it’s now incumbent on solicitors to be at a later date. might have been forgiven for wondering if the “In the light of the government’s concern on top of this issue from day one – and who is As before, the new qualification has profession was beginning to follow the LETR’s regarding youth unemployment, and our firm’s better placed to teach them about this issue maintained its reputation as being a course that advice, and embrace the non-graduate career own concern regarding student debt, we have than the ACL?” Claire Green enthuses. ■

ISSUE 4 | JULY/AUGUST 2014 JULY/AUGUST 2014 | ISSUE 4 14 15 Students Students

The study material and updates provided The next generation by Murray Heining were invaluable As a new cadre of ACL members celebrate qualification,Costs Lawyer David Clivery, asks some of them to reflect on their student years Clivery Barr & Co

eaders of Costs Lawyer will each have says his studies “developed [his] understanding “This presents great opportunities… but also their own memories of how they felt of costs issues, [in] complementing the challenges while the process is still bedding in, David Clivery, Charlie Heale, R on qualification. Neil Sexton of Blake practical and technical costs issues dealt particularly as the courts are very inconsistent Clivery Barr & Co Barford Fraser Solicitors Lapthorn admits feeling “very pleased”, with in daily work”. in their approach,” he adds. while Irwin Mitchell’s David White says he Some have worked in costs for many years. Sexton agrees, saying costs lawyers should was “delighted that the hard work over the White, who works at Irwin Mitchell (as does “get as much experience and knowledge of costs …to successfully last few years [had] paid off”. fellow qualifier, Karen Brown), had many years budgeting as they can, as this will prove to be the of costs experience, having developed a career main source of work for [them] in the future. complete the course That same sense of relief is shared by Robert starting in legal aid, before now predominantly “Qualification will provide me and my firm Cook of Ultimate Costs, who, while conceding specialising in high-value serious personal with further work opportunities,” as well as it is vital that your the course “took a lot of hard work to complete”, injury, disease and clinical negligence cases. providing clients with the “peace of mind that employer is highly says that both his employer and family were Following qualification, he has also begun to they are instructing a qualified professional, “very supportive of all the study time needed prepare costs budgets for such cases. who has the experience and capability to deal supportive of the same and it has been well worth the hard work”. David Clivery of Clivery Barr & Co, who with their work effectively and efficiently”, Faye Barston, who works at Victory Legal also had many years’ experience as a costs he adds. Robert Cook, Costs, was “extremely happy and proud to draftsman, undertook the course so as to The flexibility the qualification offers also Ultimate Costs have passed”, commenting that the exams qualify and manage his father’s firm upon extends to family law. Charlie Heale of Barford “were harder to pass than the Chartered Legal his retirement. Fraser Solicitors, a specialist family law Executive exams”. Others have entered via the graduate route; practice, worked within a firm of costs lawyers Faye Barston, Robert Cook, Barston can already see her professional like many, Fiona Beadle from Lyons Davidson and also at her current employer, and says that Victory Legal Costs Ultimate Costs horizons expanding; when she started, she had taken a law degree and LPC, but was qualification allows her to provide her employer dealt with defendant costs work, but on unsuccessful in gaining a training contract. and its clients with a very high standard of work. completion, she has moved to claimant work. “The ACL qualification has afforded me the Glen Fraser, name partner at Heale’s firm, My employer is a “The course has helped with that move,” and rights of audience I have been training a adds: “Charlie has quickly become an keen advocate of the costs qualification will assist with promotions at work, number of years to achieve,” she explains. invaluable part of our team. Employing a she explains. The same is true of White, who The new qualifiers are aware how much costs lawyer is extremely important not only lawyer qualification; I was says: “The course material helped me settle impact civil justice reform has had; Cook to improve the overall service to our clients, into my new job.” says that while recent reforms initially but also to improve the efficiency of our firm. supported throughout, The unique blend of learning and work-based “appeared to be catastrophic to the costs “Workplace learning and development experience is something that ACL students industry as a whole”, his clinical negligence is an area that Barford Fraser places great both financially and in appreciate. Hayley Walton of DAC Beachcroft and serious injury department has allowed importance upon and it is an area we will terms of study leave Claims says her employer was extremely his firm to “grow and thrive” thereafter. only look to progress in the future.” supportive in allowing her to earn and learn. Clivery, too, has seen an increase in clinical The same is true of costs practices, as Lucy Lucy Baldwin, Not only did her employer provide funding and professional negligence cases; like others, Baldwin highlights: “My employer is a keen for her studies, it also granted study leave for he has seen a downturn in RTA claimant work advocate of the costs lawyer qualification; Paragon Costs Solutions Lucy Baldwin, Hayley Walton, examinations, revision days and compulsory and an increase in defendant work, having won I was supported throughout, both financially Paragon Costs Solutions DAC Beachcroft Claims seminars for each module. two major public sector clients recently. and in terms of study leave.” Of course, such arrangements do not Jonathan Bingham, an associate at DAC Robert Cook agrees, saying he strongly just benefit the students – employers also Beachcroft Claims who manages Hayley believes that “to successfully complete the benefit from fee earners with a more detailed Walton, says one recent major change has course it is vital that your employer is highly understanding of costs law in general. Lucy been the introduction of costs budgeting. supportive of the same”. adding: “The study material and updates course, which she deemed “of particular “It gives me great pleasure to welcome all of Baldwin at Paragon Costs Solutions found the “Costs are now being looked at prospectively All of the graduates praised the ACL’s work in provided by Murray Heining were invaluable.” assistance going forward with the new our newly qualified costs lawyers,” she added. course provided a base of knowledge in areas and we are spending much more time using providing materials and lectures, with David Claire Green of Compass Costs, chairman of qualification, with early indications suggesting “We appreciate the hard work you have faced that she does not generally encounter, while our internal costs expertise to prepare budgets White noting that “the Costs Lawyer bulletins the ACL Education Committee, has since that it is going to attract many more students to achieve your goal and are sure you are going Christopher Stephenson of QM Legal Costs and advise on the process,” he explains. are extremely helpful”, and David Clivery thanked students for their feedback on the to follow in this year’s alumni’s footsteps. to prove an asset to the profession.” ■

ISSUE 4 | JULY/AUGUST 2014 JULY/AUGUST 2014 | ISSUE 4 16 CLSB Regulatory update Lynn Plumbley, chief executive of the Costs Lawyer Standards Board (CLSB), provides a round-up of regulatory developments

Costs lawyer authorised rights Where proceedings relate to other matters, in (a) practice with the benefit of Following consultation by the CLSB, on addition to costs, the rights referred to above professional indemnity insurance 26 March 2014 the Legal Services Board apply only to those parts of the proceedings of a minimum £100,000 (any one approved Costs Lawyer Authorised Rights (if any) that: claim) to include loss of documents; (previously the Statement Rights) as forming • relate solely to costs; and part of the Costs Lawyer Code of Conduct. or (b) on an ongoing basis, assess all These were immediately implemented. • relate to other issues, solely those issues financial risk associated with work that are not in dispute. being undertaken by them and As a costs lawyer you are a regulated person ensure that professional indemnity under the LSA and are authorised to carry on A matter ‘relates to costs’ if it relates to insurance and loss of documents the following reserved legal activities: payments for legal representation, including insurance is in place in excess of the • The exercise of a right of audience payments in respect of pro bono minimum set out in rule 10.1(a) at a • The conduct of litigation representation under s194 of the LSA and/or to level commensurate with that work. • The administration of oaths. payments made for bringing or defending any proceedings, but only if and to the extent that The CLSB thanks Murray Heining Provided that you are instructed to deal only those monies are not damages. For the Everyone at the CLSB would like to extend with matters that relate to costs, you may avoidance of doubt, this includes: their thanks to Murray Heining for his excellent conduct proceedings and represent clients in • Costs between opposing parties including year as ACL chair. Under his chairmanship, any court or tribunal, including any criminal costs management and budgeting. so much was achieved for the benefit of court or courts martial, the Supreme Court or • Solicitor and client costs but not if and to the the profession. the Privy Council where: extent that issues of negligence arise when a • the proceedings are at first instance; lawyer competent to deal with allegations of Entity regulation by the CLSB or negligence ought to be instructed instead. The CLSB is considering all submissions made • the proceedings include an appeal below • Legal aid, criminal costs, wasted costs or under its consultation process, which closed the level of the Court of Appeal or Upper costs against third parties. on 4 July 2014, before an application is made Tribunal, are on a first appeal (other than to the Legal Services Board. The CLSB will in the Court of Appeal) and the appeal Further, you may administer any oath. keep the profession updated on progress itself relates to costs; by way of its newsletter and its website. ■ or Revised professional indemnity • the proceedings do not fall within either of insurance rule the categories above, but your instructions Following consultation by the CLSB, on 9 April are limited to dealing with the costs of 2014 the Legal Services Board approved for Costs Lawyer Standards Board (CLSB) the proceedings; immediate implementation revised Practising Centurion House, 129 Deansgate, or Rule 10 on professional indemnity insurance: Manchester M3 3WR • the court or tribunal grants permission for Tel: 0161 214 7904 you to conduct proceedings or to represent RULE 10: Indemnity insurance Email: [email protected] a client (or both). 10.1 Costs lawyers shall ensure that they:

ISSUE 4 | JULY/AUGUST 2014 17 Case notes Legal update Summaries are from Lexis®Library, All England Reporter service unless otherwise stated. For the full judgments, members should try Bailii (www.bailii.org), a free resource, Lexis®Library (www.lexisnexis.com/uk/legal) or other law reporting services. Members are reminded that decisions of lower courts are only included where an issue is determined that is novel or of particular interest. Such cases should be cited with care. The judgments in such cases can be persuasive but are not binding on higher courts

psychotherapist’s assessment were given, including for joint instruction and that the cost of the report would be funded by the claimant (the April order). In April 2010, the psychotherapist produced a report and sent an invoice to the claimant’s solicitors. The solicitors submitted a claim in relation to costs and disbursements, including the psychotherapist’s fee, to the Legal Services Commission (the LSC). In June 2011, the LSC sent a letter, suggesting that the costs of the psychotherapist should be shared between the parties and that it was unwilling to provide funds to discharge the whole invoice. In December, the LSC sent another letter, stating that it considered that the April order was in breach of s 22(4) of the Access to Justice Act 1999 and, therefore, unlawful. The claimant issued judicial review proceedings against the LSC. The judge dismissed the application on the basis that the April order had contravened s 22(4) of the Act because the district judge’s decision had been affected by the fact that the claimant was in receipt of community legal Public funding of expert witnesses was joined as a party with a children’s guardian service funding. The claimant appealed. and granted a public funding certificate. The It fell to be determined whether the LSC had JG v Lord Chancellor and others children’s guardian suggested that it might be acted unlawfully in refusing to pay for the report appropriate for there to be a psychological in full. [2014] EWCA Civ. 656 assessment that analysed family relations and functioning, and the impact of the ongoing HELD: The appeal would be allowed. It was Court of Appeal, Civil Division dispute upon the claimant. The court was invited tolerably clear that the idea of an expert had Richard, Black and Fulford LJJ to permit the instruction of an expert psycho­ been the children’s guardian’s, and that what therapist to prepare a report on the family. had been before the district judge had been her In 2006, the claimant child’s father made an In October 2008, the district judge agreed proposal that an expert should be instructed. application for a residence and/or contact order, that such an assessment would be beneficial. Had matters stopped there, there was no under s 8 of the Children Act 1989. The claimant In April 2009, further directions about the possible objection to Continued overleaf… ✒

JULY/AUGUST 2014 | ISSUE 4 18 19 Case notes Case notes

the costs of that expert evidence being The defendant’s bill of costs totalled to apply to set aside or vary that order. The been wrong to characterise the claimants’ attributable to the claimant because it had £86,500. She had previously indicated that it defendant applied to the costs judge to set application for an extension of time as an been the claimant who had been going to put would be £72,600. The claimants asked for a aside his order and issue a default costs application for relief from sanctions, further, that evidence before the court. 21-day extension of time to the period in which certificate, contending that the order the costs judge had made case management There was nothing to suggest that either of they were required to serve their points of of 16 May had impermissibly granted decisions on 16 and 31 May with which the the parents had contributed anything on the dispute. The claimants’ points of dispute were the claimants relief from sanction. On judge had not been entitled to interfere. subject of the psychotherapist’s instruction to be served by 14 May 2013. The defendant 31 May, that application was dismissed. The Consideration was given to CPR 1.1 and 3.1. and certainly nothing to lead to the belief that did not agree to an extension. On 14 May, the defendant’s appeal against that refusal was they had been seeking to have an expert claimants applied to the Senior Courts Costs allowed. The claimants’ points of dispute, HELD: The appeal would be allowed. The involved. Notwith­standing that the district Office (SCCO) for an extension of time for which had been served, were held to be of no recent civil justice reforms had not changed judge had decided to order a joint instruction, service of the points of dispute. On the same effect. The judge held that there had been the established principle that an application the proper interpretation of what had day, the fee was paid and a copy of the non-disclosure of the facts by the claimants. for an extension of the time allowed to take happened in April 2009 had been that he had application notice was sent by email to the Further, their application for an extension of any particular step in litigation was not an been completing the process instigated by the defendant. On 15 May, the application notice time had been issued out of time, therefore application for relief from sanctions, children’s guardian in October 2008 and was stamped and formally issued. On the same they had been seeking relief from sanctions. provided that the applicant filed his authorised by him then, and that the report had day, the defendant sent a letter to the SCCO The costs judge had erred in granting relief application notice before expiry of the been, in substance, ordered at her request in requesting a default costs certificate. The from sanctions. The defendant was entitled, permitted time period. The new sub- order to address issues that had needed to be request was ineffective as the accompanying pursuant to CPR 47.9(4), to a default costs paragraph inserted into the overriding addressed in the interests of the claimant. cheques were unsigned. certificate. The SCCO was directed to, and objective (sub-para 1.1(2)(f)) did not require The fact that other parties might have had an The costs judge addressed the claimants’ later did, issue a default costs certificate in courts to refuse reasonable extensions of input into the report had not converted it into application notice ex parte on the papers. the sum of £86,400. The claimants appealed. time that neither imperilled hearing dates their report or necessarily rendered them liable On 16 May, he made an order granting the They submitted, inter alia, that in reversing nor otherwise disrupted the proceedings for the costs of it. It was vital to try to go back to extension sought and gave both parties liberty the costs judge’s decision, the judge had (see [26], [31], [41], [42] of the judgment). the time of the instruction of the expert and to The costs judge’s decision to grant an strip off the overlay of all the orders that had extension of time had been a proper exercise followed. Accordingly, the April order for the of his case management discretion, as had his instruction of the expert had, in fact, been refusal of the defendant’s application to set it made at the instigation of the children’s aside. The application for an extension of time guardian on the claimant’s behalf and it had not had been made before the expiry of the time fallen foul of s 22(4) of the Act (see [125]-[129], allowed for filing the points of dispute. It was [133], [134] of the judgment). immaterial that the SCCO staff had not A declaration would be made that the LSC’s stamped the application until the following decision not to meet the cost of the expert’s day. Therefore, the costs judge had been report had been unlawful (see [130], [133], dealing with an in-time application to extend [134] of the judgment). time under CPR 3.1(2)(a) and the principles concerning relief from sanctions had not Reproduced by permission of Reed Elsevier been applicable. The costs judge had dealt (UK) Ltd, trading as LexisNexis with the application in accordance with the overriding objective, as amended. The claimants’ application for an extension Permitted time extensions of time had been a reasonable one, which had not imperilled any future hearing dates Hallam Estates Ltd and another v Baker or otherwise disrupted the proceedings. The defendant’s application to set aside [2014] EWCA Civ. 661 the extension of time order had been based upon the misapprehension that the costs Court of Appeal, Civil Division judge had granted relief from sanction. His Personal injury proportionality The applicant coach company had been a Jackson, Lewison and Christopher Clarke LJJ dismissal of her application to set it aside defendant in a personal injury action brought had also been a proper exercise of his case Finglands Coachways Ltd v O’Hare (a by the respondent, a 23-year-old man who The claimants’ proceedings for defamation management powers. Therefore, the judge protected party by his sister and litigation had suffered injuries following a serious road

were dismissed. They were ordered to pay the ALAMY had erred in reversing the cost judge’s friend Ms Portia Crees) traffic accident when his Honda Civic motor / defendant’s costs subject to detailed decision of 31 May (see [25], [27], [28], [32], car collided with the applicant’s double assessment if not agreed. They were also [41], [42] of the judgment). [2014] EWHC 1513 (QB) decker bus. The respondent suffered ordered to pay £15,000 on account of costs, significant and extensive brain injuries with but did not make full payment of that sum by Reproduced by permission of Reed Elsevier Queen’s Bench Division associated past and future losses and

the date ordered. PHOTO: ©MACANA (UK) Ltd, trading as LexisNexis Mr Justice Cranston quantum valued in the Continued overleaf… ✒

ISSUE 4 | JULY/AUGUST 2014 JULY/AUGUST 2014 | ISSUE 4 20 21 Case notes Case notes

region of £3-4 million. The respondent proportionate in amount in favour of the Costs for a partially different than those out to one that was brought his claim on the grounds that the paying party. The court was to have regard to successful claim based on a complete cure. In the instant applicant’s driver had driven through a red or all of the circumstances of the case and the case, however, while it was accepted that amber light. The applicant denied liability and specific factors, such as the value of a claim, Cutting v Islam there would have been some difference, contended that it was the respondent who specified in CPR 44.5. CPR 44.4(2) of the old there was still a considerable amount of had driven through a red light. Accident rules meant that the court would, of its own [2014] EWHC 1515 (QB) evidence in common in the two formulations reconstruction evidence led to the initiative, disallow disproportionate costs of the claim. Nevertheless, for the claimant respondent’s expert altering his opinion and even if the paying party had not raised the Queen’s Bench Division to receive 100 per cent of her costs for the respondent withdrew his claim. The point. Whether costs, in a general sense, were Mrs Justice Patterson recovering three per cent of her claim applicant served its bill of costs in the sum of necessary was integral to whether they were did not, in the circumstances of the case, £60,000. Following a detailed assessment proportionate. In assessing costs under the The claimant brought a claim in negligence seem justified. Taking all matters into hearing, the applicant’s costs were assessed old version of the rules, a court could consider against the defendant doctor in respect of account, the court would apply a discount in the sum of £37,803.89 plus interest. The on an item-by-item basis whether a particular the treatment that the claimant’s deceased of 25 per cent to the claimant’s costs to applicant applied for permission to appeal item of costs was proportionate and husband had received. While the claimant make allowance for those factors (see with an appeal to follow if granted. necessary even if costs were proportionate was not successful in establishing causation [82], [83], [84] of the judgment). The applicant contended that on the basis on a global basis. There was nothing difficult in respect of the long-term survival of her The claimant was the successful ALAMY of CPR 44, the judge had erred in principle in deciding whether particular items of a bill deceased husband, she was successful in / party who should have 75 per cent of by assessing the costs by reference to the of costs were proportionate or necessary to establishing and recovering substantial her costs paid by the defendant (see stricter test of necessity, as opposed to the conduct of litigation (see [19], [27], [28] damages of £50,000 for four months’ loss [87] of the judgment). reasonableness, and there had been no of the judgment). of life. She succeeded also in establishing finding or any argument about the costs Although the judge used the terms that the defendant’s care was sub-standard GMBH STOCK4B Reproduced by permission of Reed being disproportionate, which was the legal ‘necessary’ and ‘need’ indiscriminately, and cut short the deceased’s life. As per Elsevier (UK) Ltd, trading as LexisNexis

prerequisite to considering necessity. Costs that conclusion was not fatal. In using the CPR 44.2, the issue of costs arose. PHOTO: © of just over £60,000 could not sensibly be term the judge had been inquiring whether The fundamental issue was who was said to be prima facie disproportionate in a the costs were justified in the sense of being the successful party in the litigation. The heavily fought claim valued at a minimum of proportionate. Secondly, in assessing claimant submitted that she had succeeded £3 million. Nor was there any argument that particular items of costs the judge almost in her claim. That she had only succeeded any particular item or group of items were always used the term ‘reasonable’, sometimes in part did not detract from her primary disproportionate. Further, the failure to apply coupled with ‘necessary’. The use of the word entitlement to costs recovery. Further, the correct test was a serious procedural ‘necessary’ had to be judged in this context no part 36 offer was ever made by the irregularity and the judge’s error pervaded and in circumstances. Even if the judge had defendant. The defendant had chosen to the entirety of the assessment such that applied the test of necessity he had not ignore the evidence of his surgical expert the final assessment had been reached in a been wrong to do so. There was nothing and rely entirely on the oncological opinion manner that was fundamentally wrong and that confined the proportionality template that delays in referral made no difference unjust (ground 1). With grounds 2-4 the to costs as a whole and excluded its and death was inevitable on the same day. applicant submitted that the judge had application to individual items. The judge The defendant submitted, inter alia, that the stepped significantly outside the ambit of had not misdirected himself in law, nor had fact that the claimant was seeking 100 per his discretion upon which reasonable his approach been procedurally irregular or cent of her costs was very surprising and agreement was possible. The case raised the unjust. In relation to grounds 2-4 in relation indicative of the way that the claimant had issue of whether, under CPR 44, a costs judge to specific items, the applicant had not conducted litigation. Particularly as the was entitled to consider if individual items of surmounted the high threshold for the claimant had made a late re-amendment costs claimed were proportionate and court to interfere with the judge’s exercise of her claim in regard to the prolongation necessary for the conduct of litigation, even if of discretion. Nothing before the court of the life of the deceased. the costs of the litigation overall appeared suggested that the judge had exceeded proportionate. The applicant’s contention was the generous discretion conferred on HELD: The recovery by the claimant of just that in those circumstances a costs judge was him or had been wrong in his approach over three per cent of her original claim confined to applying the less onerous test of to the assessment of the individual items. clearly entitled the court to ask itself who whether individual items of costs had been The application for permission to appeal, essentially was the winning party. Applying reasonably incurred. and the appeal itself, would be dismissed. established law, the starting point was that The applicant had to pay the claimant’s the claimant was the successful party. HELD: Prior to 2013, the starting point for costs of the appeal (see [26]-[29], [32] Nevertheless, a discount should be made in assessing costs on a standard basis was CPR of the judgment). respect of the late amendment made by the 44.4(2): (i) the court would only allow costs claimant. Such a course of action had been proportionate to the matters in issue and Reproduced by permission of Reed clearly undesirable so late in the proceedings. (ii) would resolve doubts as to whether costs Elsevier (UK) Ltd, trading as LexisNexis The scale of resources to be put towards a were reasonably incurred or reasonable and case of the re-amended value could be very

ISSUE 4 | JULY/AUGUST 2014 JULY/AUGUST 2014 | ISSUE 4 22 23 Time extensions Time extensions

ensure compliance with rules and orders and to agreeing to vary any time limit; a failure to meet As a prediction, issues will arise over the place at centre stage the efficiency of the court that would trigger pre-determined consequences following aspects: system. Mr Mitchell’s cause was undoubtedly (either under the CPR or court order). Only the • What constitutes an agreement in not helped by the fact that the master hearing court may vary such a time limit, not the parties. writing? An exchange of solicitors’ letters his application for relief from the sanction for will be fine, but would an unacknowledged missing the filing date for his budget had had Confusion reigns email from one lawyer to another, which to move another case to accommodate the In Lloyd, the parties could not simply agree to referred to a discussion and apparent Changing times Mitchell hearing. let the time for exchanging witness statements agreement, count? Ian Gascoigne Lloyd concerned a missed date for the slip because it was one of those cases where • Would an agreement reached on the is a partner in Ian Gascoigne of Eversheds considers time extensions following exchange of witness statements, which is a the sanction for non-compliance was already day on which the time limit expired be the litigation crucial stage on the way to trial. At a pivotal provided in rule 32.10. But the case was wrongly sufficient, or should it be done by the day and dispute the recent amendment to CPR 3.8, inspired by Mitchell and Lloyd point, both sides can take stock of the likely understood as a bar on parties agreeing ANY before that date? management outcome of the claim. Decisions to make time extensions at all. • What would be the costs consequences practice group offers to settle or to try to negotiate/mediate where a lawyer, concerned by the overall at Eversheds LLP. roblems about agreeing time rule, backed by comments from Jackson LJ a resolution are often provoked by seeing impact on the timetable, causes a court He was assisted P extensions arose after the rigorous in Hallam Estates, a recent costs decision, the other side’s intended oral evidence. It is No party in a non-Lloyd application to be needed? Would a court in the preparation approach taken in Mitchell where a severe has helped to re-balance the system. no surprise, therefore, to find that CPR 32.10 hold that lawyer’s client liable in costs if the of this article sanction for a claimant being four working provides a tough sanction for failing to meet the situation should feel able court decided the impact of an extension by colleagues days late filing a budget was upheld. Lloyd, a In the infamous Mitchell decision the Court of date for the exchange of witness statements. to agree time extensions was arguable but did not accept it? Hannah Nichols later High Court case, correctly said lawyers Appeal emphasised that courts would no A defaulting party cannot call those witnesses and Hena Ninan, could not themselves agree time extensions longer tolerate lax litigants who failed to meet at trial without the court’s permission. that would significantly Non-Lloyd situations but the views for exchanging witness statements. It timetabled dates by limiting the use of CPR 3.9 But Lloyd was never intended to apply to all In Hallam Estates v Baker, Jackson LJ said: expressed are provoked a slew of applications to ask a in giving relief from sanctions. The amended time limits – only to those that would be affected affect a court-planned “It was no part of my recommendations his own court to extend time in situations where this 3.9, which took effect in April 2013, cited the by CPR 3.8 (“Lloyd situations”). This rule was not that parties should refrain from agreeing could have been done by the parties. A new need for courts considering its application to well known before Lloyd. It prevents parties timetable without the reasonable extensions of time, which neither court’s approval imperil hearing dates, nor otherwise disrupt the proceedings.” He was not here referring to Lloyd situations where parties could not As an example, take a request to clarify previously have agreed extensions without a part 36 offer. CPR 36.8(1) allows a recipient an application to the court. Although CPR of an offer seven days to ask the offeror for 3.8(4) applies specifically to Lloyd situations, clarification. As no sanction exists for the its safeguards are basic ones in sound case offeror missing this date, the parties could management. No party in a non-Lloyd situation agree to extend it without troubling a court. should feel able to agree time extensions that In many similar situations lawyers were not would significantly affect a court-planned reaching agreements, fearful they would either timetable without the court’s approval, lose an advantage, or that agreement would be even if rules did not provide otherwise and ineffective and not protect their clients. the counterparty was not bothered about the impact. Confusion removed – Lloyd situations To prevent the increasing number of Overall unnecessary applications, the rules The change to CPR 3.8(4) is useful, with committee amended CPR 3.8 from 5 June recognition that it applies only to cases where 2014. The addition of sub-paragraph (4) a sanction would be automatically applied if a means that parties in a Lloyd situation are time limit is not met. The ability to extend other able to agree one extension to a time limit time limits continues alongside this change, but of up to 28 days, providing: within the umbrella of the court’s overriding • they do so in writing prior to the time power to control cases. ■ limit expiring; • it is a case where a failure to meet the time limit would lead to automatic

ALAMY consequences – a Lloyd situation; Case references / • the trial date is not jeopardised as Mitchell v News Group Newspapers Limited a result of the agreed extension. (2013) EWCA Civ 1537 This change is a sensible balance: promoting MA Lloyd & Sons Limited v PPC International the integrity of the court process, while Limited (2014) EWHC 41(QB) recognising that some time limits inevitably Hallam Estates Limited v Baker

PHOTO: ©PHOTONIC 17 become unrealistic during a claim. (2014) EWCA Civ 661

ISSUE 4 | JULY/AUGUST 2014 JULY/AUGUST 2014 | ISSUE 4 24 25 Costs orders Costs orders

(2007) EWCA Civ. 307 (2007) 1 WLR 1559 the If a lawyer fails to comply with a procedural Court of Appeal had dismissed the claimant’s appeals against the finding that the conditional step that results in the other side incurring fee agreements were unenforceable. Having decided that there was jurisdiction to make costs, there may be a respectable argument an NPCO against the solicitors, an NPCO was that a wasted costs order is appropriate Double made because the main reason the appeal was launched was to protect the solicitors’ claim to their profit costs of £200,000 in all 60 cases. There is a clear analogy with an application for relief against sanction for failing to file a costs budget, which puts the solicitors at clear trouble risk of an NPCO should the application fail. If the application did fail, the solicitors would Vikram Sachdeva explores the costs implications for be facing a potential claim in professional negligence for failing to timeously file a costs solicitors who file budgets late – and then lose their case budget. One way of mitigating that claim would be to conduct the case pro bono. Although acting pro bono does not ordinarily he effects of filing a costs budgeting Act 1981, which respectively provide that “the give rise to liability to an NPCO (see R (Golding) late are well known. After the Court costs of and incidental to all proceedings in v First-tier Tribunal (2012) EWHC 222 (Admin) T of Appeal’s judgment in Mitchell v [various courts] shall be in the discretion of at [34]), the motivation for acting pro bono News Group Newspapers Ltd (2014) 1WLR the court” and “[t]he court shall have full power clearly provides a pecuniary advantage to 795, a ‘good reason’ is generally required to determine by whom and to what extent the solicitors (in reducing their liability in any to justify any ‘non-trivial’ breach of a court the costs are to be paid”. There is no implied professional negligence action) and may lead a order to file a costs budget. Under CPR 3.14, limitation to those who were parties to the court to treat the situation as justifying an NPCO. any failure to provide a cost budget without litigation: Aiden Shipping Co. Ltd v Interbulk Ltd Thus the solicitors may find themselves Vikram Sachdeva such good reason will result in the relevant (1986) AC 965. liable for the entire costs of the proceedings, is a leading junior party being limited to recovery of court Non-party costs orders (NPCOs) are only to having not been paid for their work by their at Thirty Nine fees only. be made exceptionally (Symphony Group Plc v client, owing to the failure to file a costs budget Essex Street. Hodgson (1994) 1 QB 179); but in this context, on time. To add insult to injury, there is also the He specialises in Unfortunately, what constitutes a good reason ‘exceptional’ merely means outside of the possibility of a wasted costs order being made. administrative is very narrow, and does not include overwork ordinary run of cases where parties pursue or Section 51(6) of the Senior Courts Act 1981 and public law; or the mere overlooking of a deadline. It may defend claims for their own benefit and for their gives the court power to “order the legal or professional (but will not necessarily) include a situation own expense – as per Lord Brown in Dymocks other representative concerned to meet the discipline and where the party or his/her solicitor suffered a Franchise Systems (NSW) Pty Ltd v Todd whole of any wasted costs or such part of regulation; Court debilitating illness or was involved in an (2004) UKPC 39 (2004) 1 WLR 2807 at [25]. In them as may be determined in accordance of Protection accident, depending on the circumstances. order for solicitors to be liable for an NPCO they with rules of court”, and ‘wasted costs’ and costs What is less well known are the costs must be acting outside of the role of solicitor, are defined in s51(7) as including any implications for solicitors’ firms who fund either for example in a private capacity or as a true costs incurred by a party as a result of an application for relief from sanctions, or the third-party funder for someone else, as per any improper, unreasonable or negligent substantive litigation which accompanies it (or Rose LJ in Tolstoy – Miloslavsky v Aldington act or omission on the part of any legal both) – but are then unsuccessful in either (or (1996) 1 WLR 736 at 745H – 746A. representative or any employee. both) claims. There are good reasons to adopt Solicitors may fund disbursements without In practice, the negligence limb (ie breach such an approach, most obviously to avoid an becoming a real party to litigation: Flatman v of a duty to the court) will be the easiest to action for damages for professional negligence Germany (2013) EWCA Civ. 278 (2013) 1 WLR establish; all that must be established is a from their client – for nobody can doubt that 2676. Further, mere negligence (in that case in Did you know? failure to act with the competence reasonably failure to adhere to court deadlines after the form of failure to obtain ATE insurance) is Vikram Sachdeva to be expected of ordinary members of the Mitchell gives rise to a significant risk of a insufficient to attract liability for an NPCO: acted for the profession – see Ridehalgh v Horsefield (1994) finding of breach of duty. Heron v TNT and Mackrell Turner Garrett appellant in Utilise 3 WLR 462 per Sir Thomas Bingham MR at ALAMY However, if the unsuccessful client is (2013) EWCA Civ. 469 (2014) 1 WLR 1277. TDS Limited v Davies, / 233B – C. impecunious, the successful client may wish On the other hand, if a firm funded an one of the three If a lawyer fails to comply with a procedural to pursue the unsuccessful client’s lawyers. application for relief against sanction for failing recent Court of step that results in the other side incurring Two potential areas of liability are non-party to file a costs budget on time, the application Appeal Mitchell test costs, there may be a respectable argument costs orders and wasted costs orders. itself would clearly carry significant benefits for cases heard on the that a wasted costs order is appropriate. The jurisdiction to make a non-party costs the firm, greater than the benefit to the lay client. 16 and 17 June. A further incentive (if one were needed) to

order resides in s51(1) and 51(3) Senior Courts In Myatt v National Coal Board (No. 2) PHOTO: ©TETRA IMAGES file that costs budget early… ■

ISSUE 4 | JULY/AUGUST 2014 JULY/AUGUST 2014 | ISSUE 4 26 27 Transferring CFAs Transferring CFAs

here are many reasons why a firm Assignment, novation and the The Jenkins decision is open to argument on may wish to transfer live files to particular problems of CFAs a number of bases. Firstly, it very much stands T another practice – a dissatisfied Given that a transfer of right and obligations on its own facts, as the judge made clear, and client may wish to instruct an alternative under a contract is possible by way of novation, secondly, it is open to argument whether advisor, for example – but alternatively, a why is novation, or simply the entering into of a the judge correctly applied the principle of practice may wish to transfer files in bulk, fresh contract, not used? In many cases it is – for conditional benefit and burden (see the Court following a merger, an LLP conversion or a example, in the previously mentioned situation of Appeal’s comments in Davies v Jones (2010) strategic decision to retreat from one or where a dissatisfied client moves from firm A to 1 P & CR 22, (2009) EWCA Civ. 1164). more practice areas. firm B. In such a circumstance, a firm’s former Thirdly, the judge does not appear to have client will often be happy to release his/her legacy heard argument as to whether an assignment is Whatever the reason for the transfer, it is advisor from any future liabilities. Assignments, possible at all in the context of a contract of important to recognise there are two different by contrast, are often seen as a pragmatic way of personal service (see, for example, Griffiths v legal mechanisms by which such transfers can dealing with bulk transfers, where it would not be Tower Publishing (1897) 1 CH 21), and fourthly, take place. For the reasons explained below, straightforward to obtain permission for the there is arguably an increased emphasis on one mechanism, a novation, is arguably transfer from all contracting parties. consumer protection issues in the years favourable to the party selling the files. The There are also CFA-specific reasons why an post-Jenkins – and, on the facts of Jenkins, other mechanism, an assignment, is more assignment may be preferable to a novation. such consumer protection concerns did not, favourable to the acquiring party where a For example: in any event, arise. conditional fee agreement (CFA) is involved. (i) To avoid any need to reassess the success fee on creation of a new agreement Assignment and novation – (primarily pre-April 2013 CFAs); Any firms involved in key differences (ii) To maintain inter partes recoverability of Novation success fees with 1 April 2013 or later the transfer of cases, and Novation requires a tripartite agreement. Both of transfer of pre-April 2013 CFAs; especially in the transfer of the original parties to the contract and the new (iii) To avoid regulatory and enforceability party must agree that the original agreement issues arising out of the capping of success pre-April 2013 CFAs, would comes to an end and a new contract, in relation fees in personal injury CFAs arising from the to the same subject matter and on the same Legal Aid, Sentencing & Punishment of be well advised to seek terms, comes into being between one of the Offenders Act 2012. original parties and the new party. advice on how best to The practical effect of this is to release one Can CFAs be assigned? achieve this of the original parties from the contract and to The critical question, therefore, is can CFAs – replace him/her with the other party. as opposed to merely one party’s rights under The legal effect is that there are two contracts. a CFA – be assigned? The leading authority is However, balanced against this must be the The first has ended and any issue as to any rights Jenkins v Young Brothers Transport Ltd (2006) recognition that the courts are unlikely to be or liabilities under it, or as to any breaches thereof, EWHC 151 (QB). In Jenkins, the then Mrs Justice keen to foster further satellite litigation, and is between the original parties (unless expressly Rafferty held that a CFA could be assigned. In that, for obvious reasons, the situation in which addressed in the new agreement). The second is doing so, she relied heavily on the principle of the issue is likely to arise will normally leave between the new parties, and any issues arising ‘conditional benefit’. the court inclined to find facts to support the out of that are between the new parties. The ‘conditional benefit’ principle applies existence of a conditional benefit in a situation where the burden is a condition of and is in where, had the dispute been between the Assignment some intrinsic way tied to the benefit. One actual parties to the agreement, the court An assignment is an agreement between one of cannot, or should not be allowed to, pass may have been less inclined to do so. the contracting parties – the assignor – and a without the other. If you want the benefit, you Will Jenkins be followed? It is difficult to new, third party – the assignee – only. It does must also take the burden. The transaction predict with certainty and, in any event, Delicate not (normally) require the agreement of the is all or nothing, as previous cases have held. Jenkins is a long way from answering all of other contracting party. Rafferty J held that in the context of the the necessary questions. However, there are Roger Mallalieu is An assignment creates no new rights. It is particular case before her, the entitlement good reasons to anticipate that, despite the a specialist costs merely the transfer of existing rights under to the benefits under the CFA (the assignment uncertainties surrounding Jenkins, the courts law barrister. He a contract from one party (the assignor) to to the new firm of the right to payment for will be keen to achieve a similar outcome in the is ranked as a another (the assignee). The assignee can then future work) was conditional on and relevant majority of such cases. ALAMY manoeuvres / leading junior in enforce those rights without the consent of to the obligation to perform the burden (the That said, any firms involved in the transfer of the field by both When transferring files with a CFA attached, it is important to the other party. performance of that future work by that firm). cases, and especially in the transfer of pre-April the Legal 500 However, an assignment can generally only She expressly left undecided the question of 2013 CFAs, would be well advised to seek and Chambers appreciate the difference between an assignment and a transfer the benefit of the contract and not whether a CFA could be validly assigned where advice on how best to achieve this and, in & Partners the burden. It is trite law (with some limited there was not that same presence of trust and particular, on how best to protect both the firm novation, says 4 New Square’s Roger Mallalieu exceptions) that the burden of a contract confidence in a particular solicitor motivating the and the client in the event that the assignments

PHOTO: ©JOHNER IMAGES ©JOHNER PHOTO: cannot normally be assigned. assignment as there was in that particular case. are held to be ineffective. ■

ISSUE 4 | JULY/AUGUST 2014 JULY/AUGUST 2014 | ISSUE 4 28 29 Legal aid Legal aid Collaborations and CCMS Family matters The first half of 2014 has been a busy time for the The Legal Aid Agency must pay the full cost of expert Paul Seddon is an independent costs ACL’s Legal Aid Group, reports chair Paul Seddon reports ordered by the new family court, the Court lawyer based in Hockley, Essex. of Appeal has decided. Ben Rigby reports He first became ith CCMS anticipated to become each other prior to our respective submissions. a member of the mandatory in September 2014, As a result of a further meeting with the ACL Legal Aid Wthe ACL’s Legal Aid Group (LAG) Bar Council in May, the LAG has agreed to ne bugbear familiar to costs lawyers Bar, Mike Horton of Coram Chambers said the Group committee helped to organise an LAA training webinar, investigate the possibility of developing joint Ben Rigby is the practising in legal aid costs has been case was “a small silver lining to the very dark in November 2012, in which approximately 70 people guidance for counsel to claim enhancements former editor of Othe reluctance of the Legal Aid cloud created by LASPO’s removal of legal aid taking over as chair participated. However, it was felt that on prescribed rates under the new civil Costs Lawyer Agency (LAA) to pay the full costs of expert in private law children disputes”. in December 2013 the LAA’s presentation was very basic (non-family) remuneration regime introduced reports ordered by the new Family Court, Horton noted that in difficult private law and only dealt with small straightforward on 2 December 2013. We have also worked leaving it to be split between the parties disputes, “the court may resort to appointing claims. Discussions are ongoing about the together to suggest improvements to the LAA’s and the LAA. a guardian for the children, who may wish to possibility of the LAA providing further CF1A form, on which the new rates are claimed. instruct an expert”, adding that “the Court of webinars, covering substantive billing The LAG has now been invited to attend However, in a recent case the Court of Appeal Appeal opens the door a little, but every case matters, and the LAG is currently lobbying the bi-monthly meetings of the LAA Civil has decided that the Agency’s approach was will depend on its own facts”. for more effective training on using CCMS. Contract Consultative Group. I was present at wrong, ruling against the LAA’s predecessor, Tony Roe of Tony Roe Solicitors in Thame the meeting on 9 May, where issues discussed the Legal Services Commission (LSC). noted that the long and detailed judgment At the recent ACL Annual Conference in included counsel’s fees and claiming for travel The case followed the LSC’s refusal to merited careful consideration, given changes London, the legal aid seminar was well and waiting time. pay more than one-third of an expert’s fees to law and procedure since the facts of the attended. An illuminating talk given by Ian because it believed that the parents should case arose five years ago, highlighting Black LJ’s Black from Ian Black and Associates about have been required to pay the other two-thirds comment that the procedural rules applicable his experience using CCMS left us in no doubt The LAG has developed close links – leading to a Law Society intervention. were not the same as they are now and neither as to his views and the problems CCMS pilot with other bodies involved in legal aid The Law Society intervened in the case was the climate in which the parties and the providers have faced. We also learned just how of JG v The Lord Chancellor because of the judges were operating. unsophisticated CCMS is, compared with the work... We have agreed to share our need for solicitors to be clear from the start Jim Lines, partner at Harmans Costs, software that many of us currently use. as to who is paying for the expert they instruct. agreed with Fluck, saying: “It should mark the Earlier this year, both the Costs responses to consultation documents The case also raised a ‘question of general end of the Agency’s approach of insisting that Assessment Guidance (CAG) and the Civil importance’ about the lawfulness of the all of the parties should pay equal shares and Finance Electronic Handbook were updated. New benefits LSC’s actions. that the LSC/LAA must look at the specific Unfortunately, while the LAG responded At the recent ACL Conference, the The court accepted the Law Society’s facts of the case under consideration.” to the March 2014 CAG consultation, much presentation given by Carol Storer, director argument that where an expert’s report is The decision, Roe added, was based on of what we suggested was not incorporated of the Legal Aid Practitioners Group (LAPG), sought by the child alone, it will be legitimate very fact-specific grounds – something directly into these documents. The LAG proved helpful to many delegates. Immediately for the legal aid budget to bear the full cost. echoed by the ACL’s Paul Seddon, who said: continues to lobby for our submission prior to the ACL event, the LAG secured a Moreover, the court went on to say that “it may “In my opinion it by no means provides a carte points to be addressed at a future date. reciprocal agreement with the LAPG. From now not be all that infrequent” that this is the case. blanche to fund experts when parents, who on, all LAG members can receive discounts on The judgment means that, in future, the LAA have the financial means to pay for them, Collaborations LAPG seminars (and vice versa). LAG members must look at the facts of a specific case to simply refuse [to do so].” In recent months, the LAG has developed will also receive fortnightly LAPG email updates. decide whether it should pay the fees in full. Seddon added that the LAA’s response to close links with other bodies involved in legal We are now busy organising a legal aid It also means that where unrepresented subsequent court decisions “remains to be aid work. In March, LAG secretary Linda Kann seminar, which is due to take place in either parents cannot afford to commission expert seen”, noting that the judgment recommended and I met legal aid representatives from both September or October. We are looking for evidence but the court and the child’s guardian a prior authority should still be obtained. Lines the Law Society and the Bar Council, to see ideas for relevant subjects to cover, so please consider such evidence necessary, it may still agreed with Seddon, adding: “The Agency’s how we could work closer together. Common contact me at [email protected] be appropriate for the full costs to be borne by response to the judgment and indeed to areas of concern included our dealings with with your thoughts. We hope to announce the child through his/her legal aid certificate. requests for prior authority will be interesting.” the Legal Aid Agency, the implementation further details within the next couple of months. Law Society president Nicholas Fluck said One practice management point highlighted of CCMS, changes to barristers’ fees and The LAG regularly issues email updates the LAA’s position had “left many family cases by Roe is that costs lawyers should be sure to the challenges for both legal aid solicitors to those ACL members who have signed up at an impasse where expert evidence that the ask district judges to explain their reasons for and barristers. We have agreed to share our to our group. To sign up, please contact Diane court has deemed necessary is not available”. each decision they take in a short judgment and responses to consultation documents with Pattenden at the ACL office. ■ Experts were quick to comment. From the for their orders to be precisely spelled out. ■

ISSUE 4 | JULY/AUGUST 2014 JULY/AUGUST 2014 | ISSUE 4 30 31 ACL Conference ACL Conference Judges debate Brave costs proportionality new world As the first day of the recent ACL Annual Conference drew to a close, With the new model form bill one issue dominated the debate on Jackson – past present and future of costs now looming on the horizon, costs lawyers opened the final day of their annual conference with a debate about their future

t was a stark message, but one the work are being sold, costs counsel are used of was mediation. At first sight, this may profession needed to hear. Opening to value files and analyse the vulnerability seem like a somewhat odd career track for Ithe final day of the ACL’s recent annual of recoverable money,” said Smith. Nash, the profession to consider. But, in fact, there is a conference in London, ACL chairman meanwhile, suggested that costs lawyers clear logic to this suggestion. With costs budgets Sue Nash warned the audience that the could advise lenders who offered external now being prepared earlier during the disputes forthcoming introduction of the new funding to law firms. “We are brilliantly process, it was argued that advising clients on form bill of costs would lead to a reduction equipped to do that work,” she said. the likely cost of their dispute would bring many in many costs lawyers’ traditional workload, to their senses – thereby avoiding the litigation as the process becomes increasingly process altogether. “When you tell a client how t was the perfect way to ensure the first fighting over a £250,000 estate. “Spending for each side. This prompted a parting joke automated. More positively, she said, the With costs budgets much their dispute will cost, they tend to come day of the recent ACL conference ended £125,000 on a £250,000 dispute is probably from Underwoods’ Kerry Underwood that need for costs lawyers’ skills and experience now being prepared earlier back with a proposal to resolve the matter pretty Ion a high: a panel discussion on Jackson proportionate, but when you aggregate both he intended to “keep well out of Bodmin”, would remain – albeit in a different capacity. quickly,” said the ACL’s education council involving Underwoods’ senior partner sides’ costs, spending £250,000 is probably where DJ Middleton sits. “We’re going to have to think a little more during the disputes member, Claire Green, who has received Kerry Underwood and Professor Dominic disproportionate,” he said. HHJ Brown then DJ Middleton also indicated he may easily outside the box,” she said. “What else can mediation training. Regan. Yet, while both Kerry Underwood expressed a hope of future decisions on the allow costs to exceed the damages recovered. we develop into?” process, advising clients With most panellists offering an upbeat and Professor Dominic Regan gave the proportionality point, in order to generate For example, a libel claim that resulted in message about the future, Alison Lamb, chief delegates rousing summations and much certainty. “I’d quite like to see what Lord Justice minimal damages may raise issues of public Helpfully, several panel members came on the likely cost of their executive officer of the Royal Courts of Justice to think about, it was another issue that Jackson says in the Court of Appeal,” he said. importance. Equally, relatively low-value prepared with suggestions of possible growth Advice Bureau, reminded audience members of prompted multiple questions from the By contrast, DJ Middleton further reinforced holiday-related claims may raise complex markets for costs lawyers, all of which would dispute [could] bring their obligations to wider society. In the past audience: the issue of costs proportionality, his credentials as a Jackson evangelist by telling issues that are expensive for the parties to allow them to draw on their core competencies. many to their senses year, she said, the RCJ Advice Bureau had raised by His Honour Judge Simon Brown delegates: “I’m probably the only person who address. Budgets may also be increased on Consultancy work in relation to retainers, QoCs advised around 5,000 litigations in person (LiP), QC and Regional Costs Judge Simon thinks that proportionality is a great concept. proportionality grounds if it was felt that the and costs budgeting were just some of the which had only been possible thanks to pro bono Middleton, co-author of Cook on Costs. I understand it. It’s flexible. You don’t want proposed trial time had been underestimated, possible growth areas suggested by Nash. What’s more, with the recently re-launched support offered by around 200 solicitors and Indeed, the debate on this issue spilled uncertainty – but there is uncertainty inherent. or if ADR funding was not initially allocated. Matthew Smith from Kings Chambers, costs lawyer qualification now including training barristers. Yet, while demand for the RCJ Advice over into the following day’s panel I’m sorry, that’s the way we run the courts in this But DJ Middleton also made it clear that meanwhile, offered nine possible career in both legal project and practice management, Bureau’s services had never been higher, the discussion, a summary of which appeared country. We have judicial discretion.” one factor had no bearing whatsoever on his directions that costs lawyers may wish to Nash suggested these additional specialisms number of firms offeringpro bono costs advice in the Conference Special e-edition of As far as DJ Middleton was concerned, CPR considerations regarding the proportionality move into, including advising law firms’ would offer yet more reasons for law firms to had fallen from five to just two, she said. What Costs Lawyer, published at the end of May. 44.3 (5) already offered enough guidance principle: solicitors’ hourly rates. “Solicitor- clients on their litigation funding options. seek out costs lawyers’ expertise. “If your firm made this state of affairs even more regrettable, about what factors should be considered when client costs is a matter for you and your client “Solicitors receive just half-a-day’s training employs a professional support lawyer, take she added, was that much of the advice Of the two judges speaking at the event, HHJ deciding on proportionality. “Everything fits in management,” he said, bluntly. “If I’ve only on costs, and many won’t have the necessary on a costs lawyer too – you’d be absolutely materials aimed at LiPs barely mentioned costs Brown was notably more anxious about the somewhere,” he said. “Is it just money? No, it’s allowed £10,000 for disclosure and you think knowledge to advise on this issue,” he reminded nuts not to,” she said, indicating a key message – which meant that LiPs often embarked on uncertainties raised by proportionality. He also the other four factors.” For example, in a you need £20,000, you can either do the job the audience. she intended to deliver to the legal profession litigation without being aware of the financial SPENCE FREDERICK PHOTOGRAPHY offered the example of a case that came simple dispute over a £100,000 oral contact, for £10,000 with a low-grade fee earner or SPENCE FREDERICK PHOTOGRAPHY Another growth area suggested by both Nash as a whole. consequences of losing their case. Costs advice before him involving a contested will, where he suggested a proportionate legal spend spend £20,000 knowing that you’ll only get and Smith was valuing solicitors’ businesses, Another possible growth area for costs is therefore an issue there needs to be much

PHOTO: © both parties had spent £125,000 in legal fees might be in the region of £15,000-£20,000 £10,000 back.” ■ PHOTO: © either in whole or in part. “When books of lawyers that several speakers spoke in favour more awareness of, she said. ■

ISSUE 4 | JULY/AUGUST 2014 JULY/AUGUST 2014 | ISSUE 4 32 Conference photos

PHOTOS: ©SPENCE FREDERICK PHOTOGRAPHY ACL conference: in pictures

Master Hurst and ACL Student Cup winner Michelle Farlow

Claire Green and Neil Rose The CLSB’s Steve Winfield raffle t-shirt for charity and Lynn Plumbley

ACL CEO Maurice Cheng ACL Chairman’s Cup winner Ian Cosgrove (far right) and Master Campbell with former ACL chairman Murray Heining (second left)

ISSUE 4 | JULY/AUGUST 2014 34 Profile Your story Ben Rigby interviews the winner of this year’s ACL student cup, Michelle Farlow of Deborah Burke Consulting

How long have you been a costs lawyer? We are extremely busy at the moment and the examination syllabus and work through past What do you most enjoy about your work? are going through a demanding time. While exam papers in preparation for the real thing. Having passed the November 2013 exams, receiving instructions in relation to costs I have held a practising certificate since the management we are still receiving a healthy How do you feel about the ACL’s plan to start of 2014. I completed the three-year ACL supply of traditional bill drafting and costs allot a dedicated seat to trainee and NQ modular course with my employer where I recovery work. costs lawyers as part of adding additional continue to work. I love the fact my work is representation of the profession? varied and fast paced. I get great satisfaction Our workload I think this is a fantastic idea and will bring from preparing bills and seeing files through to diversity to the profession. I would definitely the conclusion of the costs recovery process. has extended to the encourage trainee and newly qualified costs lawyers to get involved. What are your main areas of practice? How preparation and exchange have they been affected by recent reforms? In your opinion, what are the most pressing What kinds of client do you act for, and how of budgets, which involves issues for costs lawyers in 2014? busy are you? communicating with our I think costs lawyers will continue to be faced My main area of practice is claimant recovery in with the challenges arising from the Mitchell clinical negligence matters. We act for a variety clients and other parties decision during 2014. Being aware of recent of clients, from high street to specialised case decisions on the issue is vital and the national firms. The predominant change to my at a much earlier stage ACL’s e-bulletin is helpful at getting information main area of work is the requirement of case to all members. I also think costs lawyers will management and budgeting. Greater emphasis What advice would you offer trainee costs need to continue to review their working is now placed on the need to plan litigation at lawyers in passing the examinations, and processes to ensure we are working efficiently the outset and measure performance as the how should they prepare for them? and, ultimately, proportionately. case goes on. My advice would be to complete all of the set Since the reforms, our workload has reading during the course and not just focus on Outside of the law, what are your extended to the preparation and exchange of the assignment questions. This way, trainees main interests? budgets, which involves communicating with will be more prepared for the end exam. In I enjoy running and taking my dog to agility our clients and other parties at a much earlier terms of preparing for the exams, I would classes. I have entered the 2015 London stage than we are typically used to. Our job recommend attendance at the ACL revision Marathon ballot but I will not find out until continues throughout the lifetime of the case days. I found these extremely helpful, along October if I have been lucky enough to secure and the days of not being instructed until the with the materials that were provided. I also a place. I find running is a great way to unwind litigation has concluded are fast disappearing. think it is imperative to revise all of the topics on after a busy day at work! ■

ISSUE 4 | JULY/AUGUST 2014