Kerry Underwood

Archive for September 2020

COSTS MANAGEMENT: NEW PRACTICE DIRECTION 3E: EFFECTIVE TOMORROW 1 OCTOBER 2020

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The matters dealt with in this piece are examined in great detail in my three volume, 1,300 page book Personal Injury Small Claims, Portals and Fixed Costs – price £50 and available from Underwoods Solicitors here.

These principles, and the whole issue of Qualified One-Way Costs Shifting, is dealt with in my book – Qualified One-Way Costs Shifting, Section 57 and Set-Off – Available from me here for £15.

Kerry Underwood offers consultancy services in relation to this and other matters and details are here.

A new Costs Management Practice Direction 3E comes into force tomorrow Thursday 1 October 2020 and the text is set out below.

Paragraph 13 is likely to cause some interesting satellite litigation:

“13. Any party may apply to the court if it considers that another party is behaving oppressively in seeking to cause the applicant to spend money disproportionately on costs and the court will grant such relief as may be appropriate”

PRACTICE DIRECTION 3E – COSTS MANAGEMENT

This Practice Direction supplements Part 3

CONTENTS OF THIS PRACTICE DIRECTION

Title           Paragraph number
A. Production of costs budgetsPara. 1  
B. Documents to be lodged for costs budgeting purposesPara. 3  
C. Budget formatPara. 4  
D. AssumptionsPara. 10  
E. Budget discussion reportsPara. 11  
F. Costs management ordersPara. 12  
G. Oppressive behaviourPara. 13  

A. Production of Costs Budgets

1. In cases where the Claimant has a limited or severely impaired life expectation (5 years or less remaining) the court will ordinarily disapply cost management under Section II of Part 3.

2. An order for the provision of costs budgets with a view to a costs management order being made may be particularly appropriate in the following cases—

(a) unfair prejudice petitions under section 994 of the Companies Act 2006;

(b) disqualification proceedings pursuant to the Company Directors Disqualification Act 1986;

(c) applications under the Trusts of Land and Appointment of Trustees Act 1996;

(d) claims pursuant to the Inheritance (Provision for Family and Dependants) Act 1975;

(e) any Part 8 or other claims or applications involving a substantial dispute of fact and/or likely to require oral evidence and/or extensive disclosure; and

(f) personal injury and clinical negligence cases where the value of the claim is £10 million or more.

B. Documents to be lodged for costs budgeting purposes

3. (a) Save in exceptional circumstances or where the court orders otherwise, the parties are not expected to lodge any documents other than Precedent H and the budget discussion report. Both are annexed, to this practice direction. If the Excel format precedent on the MOJ website is used, the calculation on page one will calculate the totals automatically and the phase totals are linked to this page also.

(b) Precedent T, also annexed to this practice direction, is to be used in the event of variation of a budget pursuant to rule 3.15A.

C. Budget format

4. (a) Unless the court otherwise orders, a budget must be in the form of Precedent H annexed to this Practice Direction. It must be in landscape format with an easily legible typeface.

(b) In cases where a party’s budgeted costs do not exceed £25,000 or the value of the claim as stated on the claim form is less than £50,000, the parties must only use the first page of Precedent H.

(The wording for a statement of truth verifying a budget is set out in Practice Direction 22.)

5. In deciding the reasonable and proportionate costs of each phase of the budget the court will have regard to the factors set out at Civil Procedure Rules 44.3(5) and 44.4(3) including a consideration of where and the circumstances in which the work was done as opposed to where the case is heard.

6. The table below identifies where within the budget form the various items of work, in so far as they are required by the circumstances of your case, should be included. The time estimated may have to be justified on the budget hearing along with the grade of fee earner doing the work.

7. Allowance must be made in each phase for advising the client, taking instructions and corresponding with the other party/parties and the court in respect of matters falling within that phase.

8. The time spent in preparing the budget and associated material must not be claimed in the draft budget under any phase. The maximum figures permitted under rule 3.15(5) should be inserted once the costs budget has been approved by the court.

9. The ‘contingent cost’ sections of this form should be used for anticipated costs which do not fall within the main categories set out in this form. Examples might be the trial of preliminary issues, applications to amend, applications for disclosure against third parties or (in libel cases) applications re meaning. Costs which are disputed (such as the need for a particular expert) should be set out in the appropriate phase of the budget and if necessary marked as disputed. Only costs which are more likely than not to be incurred should be included.

(Variation of an approved or agreed budget is dealt with in rule 3.15A.)

D Assumptions

10. (a) The assumptions that are reflected in the table below are not to be repeated. Include only those assumptions that significantly impact on the level of costs claimed such as the duration of the proceedings, the number of experts and witnesses or the number of interlocutory applications envisaged. Brief details only are required in the box beneath each phase. Additional documents should only be prepared in exceptional circumstance and, where they are disregarded by the court, the cost of preparation may be disallowed.

(b) Written assumptions are not normally required by the Court in cases where the parties are only required to lodge the first page.

TABLE

PhaseIncludesDoes NOT include
Pre-actionPre-Action Protocol correspondence  

Investigating the merits of the claim and advising client  

Settlement discussions, advising on settlement and Part 36 offers  

All other steps taken and advice given pre action  


Any work already incurred in relation to any other phase of the budget  
Issue/statements of casePreparation of Claim Form  

Issue and service of proceedings

Preparation of Particulars of Claim, Defence, Reply, including taking instructions, instructing counsel and any necessary investigation

Considering opposing statements of case and advising client

Part 18 requests (request and answer)  

Any conferences with counsel primarily relating to statements of case  

Updating schedules and counter schedules of loss  

Amendments to statements of case
 

 
CMCCompletion of DQs

Arranging a CMC

Reviewing opponent’s budget

Correspondence with opponent to agree
directions and budgets, where possible  

Preparation for, and attendance at, the CMC

Finalising the order

Any further CMC that is built into the proposed directions order
 

Preparation of costs budget for first CMC
DisclosureObtaining documents from client and advising on disclosure obligations

Reviewing documents for disclosure, preparing disclosure report or questionnaire response and list

Inspection  

Reviewing opponent’s list and documents, undertaking any appropriate investigations

Correspondence between parties about the scope of disclosure and queries arising

Consulting counsel, so far as appropriate, in relation to disclosure


Applications for specific disclosure  

Applications and requests for third party disclosure
Witness StatementsIdentifying witnesses

Obtaining statements  

Preparing witness summaries  

Consulting counsel, so far as appropriate, about witness statements  

Reviewing opponent’s statements and undertaking any appropriate investigations

Applications for witness summaries


Arranging for witnesses to attend trial (include in trial preparation)
Expert ReportsIdentifying and engaging suitable expert(s)  

Reviewing draft and approving report(s)

Dealing with follow-up questions of experts

Considering opposing experts’ reports  

Any conferences with counsel primarily relating to expert evidence  

Meetings of experts (preparing agenda etc.)

Obtaining permission to adduce expert evidence (include in CMC or a separate application)  

Arranging for experts to attend trial (include in trial preparation)
PTRBundle  

Preparing and agreeing chronology, case summary and dramatis personae (if ordered and not already prepared earlier in case)  

Completing and filing pre-trial checklists
 
Correspondence with opponent to agree directions

Preparation for and attendance at the PTR


Assembling and/or copying the bundle (this is not fee earners’ work)
Trial PreparationTrial bundles

Witness summonses, and arranging for witnesses to attend trial Any final factual investigations Supplemental disclosure and statements (if required)  

Counsel’s brief fee

Agreeing brief fee

Any pre-trial conferences and advice from counsel

Pre-trial liaison with witnesses


Assembling and/or copying the trial bundle (this is not fee earners’ work)  

Counsel’s refreshers
TrialSolicitors’ attendance at trial  

All conferences and other activity outside court hours during the trial

Attendance on witnesses during the trial  

Counsel’s trial refreshers  

Dealing with draft judgment and related applications


Preparation for trial
 
Counsel’s brief fee for trial (include in trial preparation)
ADR/SettlementAny conferences and advice from counsel in relation to settlement

Work directed to settlement negotiations and meetings between the parties and any other ADR (including mediation), to include Part 36 and other offers and advising the client  

Approval of settlement if needed  

Drafting settlement agreement or Tomlin order  

Advice to the client on settlement (excluding advice included in the pre action phase)

 

E. Budget discussion reports

11. The budget discussion report required by rule 3.13(2) must set out—

(a) those figures which are agreed for each phase;

(b) those figures which are not agreed for each phase; and

(c) a brief summary of the grounds of dispute.

The parties are encouraged to use the Precedent R Budget Discussion Report annexed to this practice direction.

F. Costs management orders

12. When reviewing budgeted costs, the court will not undertake a detailed assessment in advance, but rather will consider whether the budgeted costs fall within the range of reasonable and proportionate costs.

G. Oppressive behaviour

13. Any party may apply to the court if it considers that another party is behaving oppressively in seeking to cause the applicant to spend money disproportionately on costs and the court will grant such relief as may be appropriate.

Written by kerryunderwood

September 30, 2020 at 8:53 am

Posted in Uncategorized

JUDGES AND EMPLOYMENT LAW: KEEP OUT OF POLITICS

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The Ultimate Judicial Irony: How can you be a Court of Appeal Judge and say this?

The case of

Tabidi v British Broadcasting Corporation [2020] EWCA Civ 733

is not particularly interesting from a legal point of view.

However, it contains the most ironic statement recently made by a member of the Senior Judiciary:

“I agree that if the customary “second appeals” criteria had applied to this jurisdiction, as they do to virtually all others, permission to appeal would have been refused. In my judgment, it is high time that that the legislation was amended to enable that test to be adopted for appeals from cases which have already had the attention, not only of the expert ET, but also of the expert EAT. I can see no rational reason for the continued exception from the “second appeals” test for cases of this character.” (Paragraph 45) –

(McCombe LJ – Sedbergh School: annual fees: £34,854.)

You allowed the appeal in part: the “expert” ET and “expert” EAT, both expertly got it wrong, so, on your logic, a wrong would have gone un-righted, on a key issue, that is that Employment Tribunals are generally cost free zones.

Also, you cannot just trot off to the Court of Appeal. You need permission, which your own colleague, Bean LJ, sensibly and correctly gave.

You also need to go through a filter system even to have a full hearing in the EAT and Judge Eady allowed the matter to proceed.

Consequently, there is already a filtering system in place that simply does not exist in the ordinary court system and thus it is harder already to bring an employment appeal than it is to bring any other type of appeal.

Parliament chose to set up the highly unusual extra appeal layer of the Employment Appeal Tribunal and Parliament chose entirely to ban the High Court from having any say in any shape or form over the employment tribunal system, to the extent that findings of the employment tribunal, for example in relation to constructive dismissal and fundamental breach in any given case, are binding on the High Court.

Parliament, not you, makes the law; these remarks show exactly why Parliament made this law, and that is because Parliament did not trust the courts to deal with employment matters fairly.

The courts do not exist for your convenience; the courts exist to do justice in accordance with the will of Parliament.

Lord Justice Underhill, – Winchester College – fees £41,708 a year -:

“I would add, finally, that this is precisely the kind of case in which permission to appeal would have been refused if a second appeals test of the kind which applies in most other fields were in place.”

So, again, Lord Justice Underhill prefers less work and an injustice as compared with the peasants being allowed to appeal.

I wonder if trade union history was on the syllabus at Sedbergh School or Winchester College.

This was the Judge who said that the High Court in UNISON – the Employment Tribunal Fees case –  was not obviously wrong in saying that a claimant left with £200 a month after essential living expenses had the “opportunity to accumulate the necessary sums over a period of months before the issue of the claim…”

Unison, R (On the Application Of) v The Lord Chancellor [2015] EWCA Civ 935

Leaving aside the fact that the time limit in Employment Tribunals is three months less a day – not much time to save is you are unemployed as a result of being unfairly dismissed – the amount left in a month for a working person covers the fees of Winchester College for approximately 1.7502637 days.

This is posted on the day that a recently retired Supreme Court Judge suggested we feel free to treat the law on Covid 19 restrictions as “ a secondary consideration” and that the Lord Chancellor said he would quit if he has broken the law in “an unacceptable manner”, suggesting that we can all break the law if it is in an acceptable manner.

Just off to rob a bank – in an acceptable manner of course.

Enough is enough.

NB –  “The second appeals test means that the court of appeal will not give permission unless it considers that the appeal would have a real prospect of success, and that it raises an important point of principle, or a practice or there is some other compelling reason for the Court of Appeal to hear it.”

Written by kerryunderwood

September 14, 2020 at 2:21 pm

Posted in Uncategorized

VIDEO LOGS

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I set out below, with links, the 10 video logs that I have posted so far.

Title
DurationDate
CONVEYANCER WANTED


2 minutes

7 September 2020
COSTS REGIMES: CONFUSION BETWEEN COURTS AND TRIBUNALS  


9 minutes

4 September 2020
DATA PROTECTION AND LEGAL PROCEEDINGS


6 minutes

4 September 2020
PROPORTIONATE COSTS ORDERS


5 minutes

31 August 2020
MY RUBBISH CASE STRUCK OUT: I WANT COSTS: 3 CRAZY CASES: 3 CORRECT DECISIONS


6 minutes

28 August 2020
DETAILED ASSESSMENT: SOME TIPS


3 minutes

28 August 2020
LITIGANTS IN PERSON: WHY I THINK THEY SHOULD BE BANNED


5 minutes

27 August 2020
INTEREST ON COSTS


10 minutes

27 August 2020
FOOTBALL MEETS THE LAW: PART 36 OFFERS IN FOOTBALL


5 minutes

26 August 2020
LEGAL SERVICES CONSUMER PANEL: SCRAP ALL THE WATCHDOGS SAYS KERRY UNDERWOOD5 minutes

25 August 2020

Written by kerryunderwood

September 7, 2020 at 12:09 pm

Posted in Uncategorized

CONVEYANCER WANTED

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Below is a 2-minute video which is a job advert for a Conveyancer for the Hemel Hempstead office of Underwoods Solicitors.

For more information contact Robert Males on 01442 430 900 and please send your CV with a covering email to Tarryn van Graan at tarryn.vangraan@lawabroad.co.uk .

Written by kerryunderwood

September 7, 2020 at 10:25 am

Posted in Uncategorized

COSTS REGIMES: CONFUSION BETWEEN COURTS AND TRIBUNALS

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This is a 9-minute video looking at the confusion between the Costs Regimes in courts and in tribunals, especially where they have joint jurisdictions, such as in employment and judicial review.

Kerry Underwood offers consultancy services in relation to this and other matters and details are here.

Written by kerryunderwood

September 4, 2020 at 3:29 pm

Posted in Uncategorized

DATA PROTECTION AND LEGAL PROCEEDINGS

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This is a 6-minute video looking at Data Protection and Legal Proceedings, and in particular the fact that legal proceedings are largely exempted from the Data Protection Act 2018 and the video considers a recent Court of Appeal case.

Kerry Underwood offers consultancy services in relation to this and other matters and details are here.

Written by kerryunderwood

September 4, 2020 at 3:17 pm

Posted in Uncategorized

CIVIL LITIGATION FUNDING AGREEMENTS: PART 2: DAMAGES-BASED AGREEMENTS

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This piece, in slightly different form, first appeared on the Practical Law Dispute Resolution Blog.

The matters dealt with in this piece are examined in great detail in my three volume, 1,300 page book Personal Injury Small Claims, Portals and Fixed Costs – price £50 and available from Underwoods Solicitors here.

Kerry Underwood offers consultancy services in relation to this and other matters and details are here.

The single potential benefit of Damages-Based Agreements is that it is a form of out and out Contingency Fee Agreement, that is taking a percentage of damages, which is available for contentious work, and thus can be used once proceedings have been issued, in contrast to a Contingency Fee Agreement under Section 57 of the Solicitors Act  1974, which cannot be used once proceedings have been issued.

It also allows for one agreement to be used from the moment the client comes in until the case is resolved, in contrast to the Underwoods Method which involves a Contingency Fee Agreement, a Bridging Agreement and a Conditional Fee Agreement, and which also involves the fact that under a Conditional Fee Agreement you cannot just take a straight percentage, but rather the lawyer’s bonus for taking the risk of not getting paid is calculated by reference to an uplift on ordinary costs.

I deal with conditional fees generally in the second part of this blog.

If it was as simple as that, then I would advise using Damages-Based Agreements all the time, but in fact I advise never using them.

There are two central problems which mean that almost no Damages-Based Agreements have been used since their inception in civil proceedings in 2013; they are compulsory if working on a contingency base in Employment Tribunal matters.

Firstly, credit must be given to the client against the contingency fee for all costs recovered from the other side, which is not the case with a Contingency Fee Agreement, and is not the case with a Conditional Fee Agreement, where the risk-based element, that is the success fee, is specifically not recoverable from the other side, and so there can never be any costs to set off against the full success fee chargeable to the client.

Under Damages-Based Agreements, but not Contingency Fee Agreements in personal injury and other civil work, there are statutory caps on the percentage damages to be charged, and these are:

Personal Injury  25%
Employment  35%
Other Civil Work  50%

All of these percentages include VAT, and in any civil case that goes the distance, or anywhere near the distance, the costs recoverable from the other side are likely to exceed 50%, and therefore the client pays nothing, and the solicitor gets not a single penny for taking the risk of no pay in the event of defeat.

Thus the solicitor is worse off in two ways as compared with charging by the hour win or lose; the first and obvious one is that the solicitor does not get paid in the event of defeat, but the second one is that even on victory and having taken the risk of getting no fee on defeat, the solicitor earns less than on the traditional hourly rate, win or lose.

This madness is known as the Ontario principle.

The second main, and related, problem is that the indemnity principle applies, and therefore the recoverable costs from the other side are limited to the amount charged in the Damages-Based Agreement, which is itself limited by Parliament.

Let us take a civil claim worth, say, £100,000 in damages and which is won.

Let us say that the recovered costs are £60,000 and the unrecovered solicitor and own client costs are £15,000.

Hourly Rate

Under the old-fashioned hourly rate, win or lose, basis the solicitor will charge £75,000 costs as follows:

                                                                                            

Recovered costs  £
60,000
Unrecovered costs payable by client  15,000
Total  75,000

Consequently, the client receives £85,000 being the damages of £100,000 less the unrecovered costs payable by the client of £15,000.

Damages-Based Agreement

The client will receive £100,000 damages as the indemnity principle limits recoverable costs to £50,000 and so that is all that the solicitor can charge, and as the whole sum is recovered from the other side, the client pays nothing at all.

Thus, the solicitor gets £50,000, rather than £75,000, even though the solicitor has taken all of the risk.

The client who has taken no risk in relation to its own lawyer’s fees, gets the full £100,000.

You could not make it up.

Damages-Based Agreements: Still Never Use Them

LEAVE TO APPEAL GRANTED BY COURT OF APPEAL

The Court of Appeal has now given permission to appeal against the decision set out below and in granting permission Lord Justice Lloyd stated:

“Although the purposive interpretation arrived at by the judge seems more likely than not to prevail in the end, the appellant’s construction is arguable, and the issue is of sufficient general importance to merit consideration by the full court.”

In

Lexlaw Ltd v Zuberi [2020] EWHC 1855 (Ch)

the Chancery Division of the High Court held that a Damages-Based Agreement which required the client to pay for time and expenses to date if the client terminated the Agreement, was a valid agreement under the Damages-Based Agreements Regulations 2013.

Here, the client sought to terminate the Agreement and the claim settled and the claimant firm of solicitors sought to recover its fees based on that settlement, under the usual principles of Damages-Based Agreements.

The client argued that as the Agreement provided for “an amount to be paid by the client” which was other than the payment calculated by reference to Regulation 4(1) of the 2013 Regulations, it was unenforceable.

The court rejected that argument.

The decision confirms what most of us thought anyway, that is that if the Agreement is terminated by the client before a right to share in any proceeds has arisen, then the solicitor can charge for work done to date on any basis specified in the Agreement, including the hourly rate.

Regulation 4 limits a solicitor’s charge to an agreed percentage of damages, not to exceed the permitted cap, plus expenses recovered from the other side.

The Chancery Division held that it was an obvious consequence of preventing representatives getting their time costs on a client determination that those representatives would be reluctant to enter into Damages-Based Agreements and that would be contrary to the purpose of making such agreements lawful, so as to facilitate access to justice.

That would have the knock-on effect of creating less choice for clients wanting to bring civil litigation claims.

Comment

This is a welcome and sensible decision, but I must admit I had always assumed that this must be the case, as it was the case under the original 2010 Regulations and there was no suggestion that different laws should apply for other civil work outside the employment jurisdiction.

It does not mean that Damages-Based Agreements are worth entering into; there are very few circumstances where a Damages-Based Agreement is to be preferred to the Underwoods Method of a pre-Action Contingency Fee Agreement under Section 57 of the Solicitors Act 1974, followed by a Conditional Fee Agreement.

The key disadvantage of Damages-Based Agreements is that the damages cap not only limits the charge to the client, but due to the indemnity principle limits recoverability from the other side.

For example, in a general civil claim the percentage limit in a Damages-Based Agreement is 50%. That means that a successful client cannot recover more than that sum from the other side.

In sharp contrast, Conditional Fee Agreements can limit the amount to be paid by the client without causing indemnity principle problems.

Furthermore credit must be given to the client for costs recovered, which in any substantial litigation means that the client will pay nothing, due to the combination of the cap, the indemnity principle and having to give credit.

In stark contrast the risk-based success fee in conditional fee agreements is not recoverable, so there can never be anything to offset against it.

Written by kerryunderwood

September 1, 2020 at 11:25 am

Posted in Uncategorized

COSTS MANAGEMENT: NEW PRACTICE DIRECTION 3E: IN EFFECT 1 OCTOBER 2020

leave a comment »


The matters dealt with in this piece are examined in great detail in my three volume, 1,300 page book Personal Injury Small Claims, Portals and Fixed Costs – price £50 and available from Underwoods Solicitors here.

These principles, and the whole issue of Qualified One-Way Costs Shifting, is dealt with in my book – Qualified One-Way Costs Shifting, Section 57 and Set-Off – Available from me here for £15.

Kerry Underwood offers consultancy services in relation to this and other matters and details are here.

A new Costs Management Practice Direction 3E comes into force on Thursday 1 October 2020 and the text is set out below.

Paragraph 13 is likely to cause some interesting satellite litigation:

“13. Any party may apply to the court if it considers that another party is behaving oppressively in seeking to cause the applicant to spend money disproportionately on costs and the court will grant such relief as may be appropriate”

PRACTICE DIRECTION 3E – COSTS MANAGEMENT

This Practice Direction supplements Part 3

CONTENTS OF THIS PRACTICE DIRECTION

Title           Paragraph number
A. Production of costs budgetsPara. 1  
B. Documents to be lodged for costs budgeting purposesPara. 3  
C. Budget formatPara. 4  
D. AssumptionsPara. 10  
E. Budget discussion reportsPara. 11  
F. Costs management ordersPara. 12  
G. Oppressive behaviourPara. 13  

A. Production of Costs Budgets

1. In cases where the Claimant has a limited or severely impaired life expectation (5 years or less remaining) the court will ordinarily disapply cost management under Section II of Part 3.

2. An order for the provision of costs budgets with a view to a costs management order being made may be particularly appropriate in the following cases—

(a) unfair prejudice petitions under section 994 of the Companies Act 2006;

(b) disqualification proceedings pursuant to the Company Directors Disqualification Act 1986;

(c) applications under the Trusts of Land and Appointment of Trustees Act 1996;

(d) claims pursuant to the Inheritance (Provision for Family and Dependants) Act 1975;

(e) any Part 8 or other claims or applications involving a substantial dispute of fact and/or likely to require oral evidence and/or extensive disclosure; and

(f) personal injury and clinical negligence cases where the value of the claim is £10 million or more.

B. Documents to be lodged for costs budgeting purposes

3. (a) Save in exceptional circumstances or where the court orders otherwise, the parties are not expected to lodge any documents other than Precedent H and the budget discussion report. Both are annexed, to this practice direction. If the Excel format precedent on the MOJ website is used, the calculation on page one will calculate the totals automatically and the phase totals are linked to this page also.

(b) Precedent T, also annexed to this practice direction, is to be used in the event of variation of a budget pursuant to rule 3.15A.

C. Budget format

4. (a) Unless the court otherwise orders, a budget must be in the form of Precedent H annexed to this Practice Direction. It must be in landscape format with an easily legible typeface.

(b) In cases where a party’s budgeted costs do not exceed £25,000 or the value of the claim as stated on the claim form is less than £50,000, the parties must only use the first page of Precedent H.

(The wording for a statement of truth verifying a budget is set out in Practice Direction 22.)

5. In deciding the reasonable and proportionate costs of each phase of the budget the court will have regard to the factors set out at Civil Procedure Rules 44.3(5) and 44.4(3) including a consideration of where and the circumstances in which the work was done as opposed to where the case is heard.

6. The table below identifies where within the budget form the various items of work, in so far as they are required by the circumstances of your case, should be included. The time estimated may have to be justified on the budget hearing along with the grade of fee earner doing the work.

7. Allowance must be made in each phase for advising the client, taking instructions and corresponding with the other party/parties and the court in respect of matters falling within that phase.

8. The time spent in preparing the budget and associated material must not be claimed in the draft budget under any phase. The maximum figures permitted under rule 3.15(5) should be inserted once the costs budget has been approved by the court.

9. The ‘contingent cost’ sections of this form should be used for anticipated costs which do not fall within the main categories set out in this form. Examples might be the trial of preliminary issues, applications to amend, applications for disclosure against third parties or (in libel cases) applications re meaning. Costs which are disputed (such as the need for a particular expert) should be set out in the appropriate phase of the budget and if necessary marked as disputed. Only costs which are more likely than not to be incurred should be included.

(Variation of an approved or agreed budget is dealt with in rule 3.15A.)

D Assumptions

10. (a) The assumptions that are reflected in the table below are not to be repeated. Include only those assumptions that significantly impact on the level of costs claimed such as the duration of the proceedings, the number of experts and witnesses or the number of interlocutory applications envisaged. Brief details only are required in the box beneath each phase. Additional documents should only be prepared in exceptional circumstance and, where they are disregarded by the court, the cost of preparation may be disallowed.

(b) Written assumptions are not normally required by the Court in cases where the parties are only required to lodge the first page.

TABLE

PhaseIncludesDoes NOT include
Pre-actionPre-Action Protocol correspondence  

Investigating the merits of the claim and advising client  

Settlement discussions, advising on settlement and Part 36 offers  

All other steps taken and advice given pre action  


Any work already incurred in relation to any other phase of the budget  
Issue/statements of casePreparation of Claim Form  

Issue and service of proceedings

Preparation of Particulars of Claim, Defence, Reply, including taking instructions, instructing counsel and any necessary investigation

Considering opposing statements of case and advising client

Part 18 requests (request and answer)  

Any conferences with counsel primarily relating to statements of case  

Updating schedules and counter schedules of loss  

Amendments to statements of case
 

 
CMCCompletion of DQs

Arranging a CMC

Reviewing opponent’s budget

Correspondence with opponent to agree
directions and budgets, where possible  

Preparation for, and attendance at, the CMC

Finalising the order

Any further CMC that is built into the proposed directions order
 

Preparation of costs budget for first CMC
DisclosureObtaining documents from client and advising on disclosure obligations

Reviewing documents for disclosure, preparing disclosure report or questionnaire response and list

Inspection  

Reviewing opponent’s list and documents, undertaking any appropriate investigations

Correspondence between parties about the scope of disclosure and queries arising

Consulting counsel, so far as appropriate, in relation to disclosure


Applications for specific disclosure  

Applications and requests for third party disclosure
Witness StatementsIdentifying witnesses

Obtaining statements  

Preparing witness summaries  

Consulting counsel, so far as appropriate, about witness statements  

Reviewing opponent’s statements and undertaking any appropriate investigations

Applications for witness summaries


Arranging for witnesses to attend trial (include in trial preparation)
Expert ReportsIdentifying and engaging suitable expert(s)  

Reviewing draft and approving report(s)

Dealing with follow-up questions of experts

Considering opposing experts’ reports  

Any conferences with counsel primarily relating to expert evidence  

Meetings of experts (preparing agenda etc.)

Obtaining permission to adduce expert evidence (include in CMC or a separate application)  

Arranging for experts to attend trial (include in trial preparation)
PTRBundle  

Preparing and agreeing chronology, case summary and dramatis personae (if ordered and not already prepared earlier in case)  

Completing and filing pre-trial checklists
 
Correspondence with opponent to agree directions

Preparation for and attendance at the PTR


Assembling and/or copying the bundle (this is not fee earners’ work)
Trial PreparationTrial bundles

Witness summonses, and arranging for witnesses to attend trial Any final factual investigations Supplemental disclosure and statements (if required)  

Counsel’s brief fee

Agreeing brief fee

Any pre-trial conferences and advice from counsel

Pre-trial liaison with witnesses


Assembling and/or copying the trial bundle (this is not fee earners’ work)  

Counsel’s refreshers
TrialSolicitors’ attendance at trial  

All conferences and other activity outside court hours during the trial

Attendance on witnesses during the trial  

Counsel’s trial refreshers  

Dealing with draft judgment and related applications


Preparation for trial
 
Counsel’s brief fee for trial (include in trial preparation)
ADR/SettlementAny conferences and advice from counsel in relation to settlement

Work directed to settlement negotiations and meetings between the parties and any other ADR (including mediation), to include Part 36 and other offers and advising the client  

Approval of settlement if needed  

Drafting settlement agreement or Tomlin order  

Advice to the client on settlement (excluding advice included in the pre action phase)

 

E. Budget discussion reports

11. The budget discussion report required by rule 3.13(2) must set out—

(a) those figures which are agreed for each phase;

(b) those figures which are not agreed for each phase; and

(c) a brief summary of the grounds of dispute.

The parties are encouraged to use the Precedent R Budget Discussion Report annexed to this practice direction.

F. Costs management orders

12. When reviewing budgeted costs, the court will not undertake a detailed assessment in advance, but rather will consider whether the budgeted costs fall within the range of reasonable and proportionate costs.

G. Oppressive behaviour

13. Any party may apply to the court if it considers that another party is behaving oppressively in seeking to cause the applicant to spend money disproportionately on costs and the court will grant such relief as may be appropriate.

Written by kerryunderwood

September 1, 2020 at 9:53 am

Posted in Uncategorized

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