Litigation funder Burford Capital has announced a 75% increase in net profits for 2016, taking the figure to $115m (£95m), while warning the government that the Jackson reforms had made it impossible to provide after-the-event (ATE) insurance for “large and complex” commercial cases.
A new “intermediate track” involving lower-value multi-track cases and fixed recoverable costs (FRCs) could be piloted on a voluntary basis, Lord Justice Jackson revealed today. He also recorded that evidence submitted to his review of FRCs showed increased support for costs management.
An approved or agreed budget will bind the parties at detailed assessment unless there is good reason not to, the High Court has ruled in a decision that is almost certain to go to the Court of Appeal. Overturning the ruling in Merrix, Mrs Justice Carr said this would achieve the purpose of cutting down the number of detailed assessments.
Whole of split bill, less additional liabilities, subject to proportionality test, rules regional costs judge
A court faced with a bill of costs that straddles the Jackson reforms should consider both the pre and post April 2013 costs when deciding whether it is proportionate, but ignore any additional liabilities, a regional costs judge has ruled.
A second regional costs judge has ruled that an approved budget does not hinder a detailed assessment, but also called on the higher courts or the rule committee to give a definitive view. District Judge Hale in Nottingham explicitly agreed with the ruling of his Birmingham-based colleague, District Judge Lumb, in Merrix v Heart of England NHS Foundation Trust.
Lawyers have united against the potential threat of a huge extension of fixed recoverable costs to all civil claims worth up to £250,000. The Bar Council warned that the move could starve young barristers of work, while the Association of Costs Lawyers argued that the existing system of costs budgeting was working.
The NHS Litigation Authority is to press the government to set the threshold for cases subject to fixed recoverable costs at £100,000, rather than the proposed £25,000, Litigation Futures can reveal.
A second master of the Senior Courts Costs Office has expressly disagreed with the Senior Costs Judge on the issue of whether pre-LASPO additional liabilities should be subject to the new proportionality test.
Uncertainty around the question of whether recoverable additional liabilities are subject to the proportionality rule has grown after a split between costs judges emerged. Master Rowley expressly disagreed with Senior Costs Judge Gordon-Saker’s decision in BNM v MGN, which is due to be considered by the Court of Appeal.
The incoming chairman of the Bar has called on Lord Justice Jackson to protect the junior Bar from the impact of his review of fixed recoverable costs. “I fear that suggestions that solicitors will share the resultant (very much lower) fixed fees with the Bar are optimistic,” said Andrew Langdon QC.
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.”