Fixed recoverable costs: unfair and wrong in principle?

Alex Bagnall

Are fixed recoverable costs inevitable? On 11 November 2016 it was announced that Jackson LJ was to consult on the extension of fixed recoverable costs. That announcement was clear: those involved were to “look at options to extend fixed recoverable costs much more widely”; and to “develop proposals for extending the present fixed recoverable costs regime”. It was said that “the momentum is heavily for reform” and that the purpose of the review was to provide “opportunity for comments and submissions on the form and scope that reform should take”.

April 18th, 2017

Why the NHSLA should not run the new ADR scheme for birth injuries

Adam Sampson

In a world where the cost of legal claims against the NHS, already some £1.5bn, is set to increase by a further £1bn simply as a result of the changes to the Ogden discount rate, it is scarcely a surprise that the NHS Litigation Authority (NHSLA) is being encouraged to find alternative methods of settling disputes. So the news that it is agitating to take ownership of the proposed new birth injuries scheme as the cornerstone of their new commitment to settling disputes by consensus rather than via litigation should not come as a surprise. But just because the move would suit an institution looking for a new purpose does not make it right for claimants (and their representatives).

April 10th, 2017

Travel industry sickness scheme – good in theory, bad in practice

Simon Sharpe Just Costs

The travel industry is urging holidaymakers with sickness claims to use its own settlement scheme rather the instruct lawyers. The Association of British Travel Agents has unveiled a new and independent alternative dispute resolution scheme for personal injury claims worth up to £10,000. Whilst I support ABTA’s attempts to seek a more streamlined remedy for sickness claims, I can’t help but think that the lack of involvement of solicitors would result in under-settlement.

April 4th, 2017

Proportionality – not just a matter for detailed assessment

Stack of documents and papers

Proportionality is one of the major issues that we find we are dealing with at the end of a matter, particularly in the small-to-medium-value claims. Why was it introduced? It was considered that the then existing system was not working and that a system needed to be put in place which would “promote access to justice at proportionate cost”. In 2009, Court of Appeal judge Sir Anthony May said: “Assessments which have to concentrate retrospectively on what the winning party has spent will always risk producing a disproportionate result.”

March 29th, 2017

The future of ATE – 2017 and beyond

Tony Dyas

Where does after-the-event (ATE) insurance go from here? If you asked most providers that question in 2013 in the lead-up to LASPO, then you could be forgiven for thinking that there wouldn’t be an ATE market in 2017. If you asked ATE providers now, most would at best be cautiously optimistic about the future.

February 27th, 2017

Getting to grips with proportionality and additional liabilities

Lee Coulthard John M Hayes

Before the Jackson reforms, the relationship between proportionality and additional liabilities was clearly defined. One of the key reforms was the introduction of a new proportionality test. Unfortunately, the new rules are silent as to the application of this test to additional liabilities. Unfortunately, the judges at the Senior Courts Costs Office are in disagreement as to the interplay between the new proportionality test and additional liabilities.

February 22nd, 2017

Can can we trust insurers to behave?

Deborah Evans 2017

As the Association of British Insurers (ABI) supplies a list of excuses akin to ‘the dog ate my homework’ to pass the buck for rising insurance premiums to everybody but insurers, it’s time for a robust examination of the facts. Repair costs are indeed rising prohibitively. The ABI talks of repair costs rising by 32% over three years due to modern cars being more expensive to fix. Let’s not forget, however, the ongoing scandal of repair costs being over-inflated between insurers. Whilst they all try to score a point against each other, every motorist pays through their premium.

February 6th, 2017

Proportionality – opening a can of worms

Chris Stephenson Just Costs

There is clear disagreement between masters in the Senior Courts Costs Office on a fundamental element in applying the proportionality test. The situation is compounded by an inability of the judiciary to agree on something as simple as how to apply an appropriate reduction once costs have been found to be disproportionate. How can this uncertainty have anything other than a detrimental effect on practitioners and clients? How can a practitioner provide accurate advice to a client on the application of the test, when the judges themselves cannot reach a consensus?

January 17th, 2017

The year of costs in review

Alex Bagnall

This year started well for personal injury lawyers with the Court of Appeal’s judgment in Broadhurst v Tan (February). Lord Dyson concluded that a claimant who beats their own part 36 offer at trial is not restricted to recovering fixed costs. Sales LJ inadvertently delivered a shockwave in SAPRD Oil v ADDAX Energy (March) by suggesting that a failure to obtain a recording at the first case and costs management conference that incurred costs in a budget were disproportionate meant those costs could not be challenged at a later date.

December 22nd, 2016

Another twist in the Yellow Brick Road of CFA assignment

Christopher McClure

So, what are the implications of the decision of Master Leonard in Azim v Tradewise Limited [2016] EWHC B20 (Costs). As reported recently on Litigation Futures, this was a routine low-value personal injury claim for damages caused by a minor road traffic accident in 2011. The claimant instructed three firms of solicitors under two pre-LASPO conditional fee agreements – the second of which was assigned from firm 2 to firm 3. Both provided for a 100% success fee.

September 5th, 2016