Ahoy there! 2019 ahead. What beckons?
As the tinsel and Christmas decorations are put away for another year, thoughts move away from the joys of the Yuletide period and towards the more uncertain times ahead, at least insofar as those who practise in costs are concerned.
What can we expect in 2019?
First, it is likely to be the year of the electronic bill. With the profession having studiously avoided the pilot schemes run by the Senior Courts Costs Office for two years, it is now “crunch time”. As from 6 April 2018, the “new” electronic bill became mandatory for all work done from that date (look out for the few exceptions, such as where fixed costs apply, litigants in person, etc), with a limited lifeline for anything undertaken before that date, in respect of which it is still permissible to present the material on paper. Even now, however, there has yet to be an electronic bill which has gone the full distance, that is to say, from the service of a Notice of Commencement, to the taking of a reference at the SCCO, to the filing of the bill and to the completion of an electronic assessment before the Master. Yes, there have been a few provisional electronic assessments, but do they count? Not really, because the provisional assessment costs are limited to £1,500 and the job is completed without any attendance, whereas with a detailed assessment, it is still not known whether it will be faster or slower, costlier or less expensive or indeed whether the hearing will descend into a sophisticated version of Battleships. 2019 will tell.
Next, proportionality. It is now five years nine months since the “new” rule in CPR 47.3(5) was implemented and it is clear that the profession is not much closer to knowing how the rule should be applied than was the case all those years ago. The Court of Appeal would provide guidance, said Sir Rupert Jackson, but the court refused permission in May v Wavell Group, and in the meantime the profession has been mired in confusion by the apparently conflicting decisions at Circuit Judge level. In that context, contrast the judgment in May itself with that given in Reynolds v First Stop Stores. In the former, Brian May got back much of what he had lost at first instance, whereas in the latter Mrs Reynolds left empty-handed and with an order against her that she pay the costs of the appeal. Were it to be possible at least for a High Court judge to give some guidance about proportionality within the next twelve months, 2019 will be remembered with considerably more affection than its predecessor.
Mediation in costs. If the electronic bill does prove to be akin to trying to drive a car with a square wheel, as many have predicted, the alternative to an electronic assessment may be a costs mediation. The rule makers have fallen short of making ADR mandatory in costs litigation, but as there has certainly been a movement to encourage mediation across the board, the impetus is towards more mediation and less detailed assessment. If it can work in the settlement of large commercial, personal injury or clinical negligence cases, why not in costs where the figures often run into the millions, sometimes dwarfing the damages recovered? If the wheels, whether square or round, do indeed come off the electronic bill, entities such as Costs Alternative Dispute Resolution (CADR) can expect a big influx of work in 2019.
“Drop the waffle and cut to the case, pleads judge”: that was a headline in the Times on 14 December 2018 when the legal correspondent commented on a speech given by Lady Justice Rafferty in which she had called for an end to courtroom deference and archaic phrases such as “with the greatest respect” and had complained about having to read “learned judge” up to 60 times in an outline argument. The article had continued:
“At a training seminar two sets of sentencing remarks had been timed. Lady Justice Rafferty said that the first, at more than 22 pages, took 34 minutes ‘for two men in the dock to find out they were getting five years and seven years respectively for a straightforward GBH’. She said that in the second example, it took Lord Justice Irwin ‘eight minutes of pure gold to say everything necessary’ in a 2008 murder trial of a young boy.
She reminded advocates that if grounds of appeal were ‘inexcusably prolix’ they might be refused by the Court of Appeal’s registrar on the basis that no ground was identifiable.”
Laudable sentiments indeed, but Oh, that they would apply to the Points of Dispute and Replies, which frequently weigh down the court file on detailed assessments at the SCCO! Were that to be the case, no longer would be seen, churned out in those Points, large chunks of the Rules together with lengthy extracts from judgments with which the court is wholly familiar and whose inclusions make the court’s metaphorical hair stand on end in dismay.
Talking of lengthy judgments, however, is it not the case, with the greatest respect (sorry, we cannot say that any more), of the pot calling the kettle black, when the learned (sorry, cannot say that either) judgments upon which we report, frequently run into dozens, if not scores and even hundreds of paragraphs?
Today we publish the decision in BCME Bank v Phoenix Commodities PVT Ltd, in which 72 dense paragraphs were required in order to decide that the defendant was not entitled to relief from sanctions under CPR 3.14, having failed to file a costs budget within the time set out in CPR 3.13. Earlier, at  5 Costs LO 545, we published Page v RGC Restaurants, which at 175 paragraphs put Phoenix Commodities firmly into the shade, that decision again addressing whether relief from sanctions should be given following a breach of the same rule.
If a bit of Lord Justice Irwin’s “pure gold” in 2019 could rub off onto some of his colleagues in terms of the length of their judgments, it would certainly make for a happier life for your co-editors who have to read and précis their pearls of wisdom.
That all said, the last words on waffle must go to the letter writers to the Thunderer: Adrian Brodkin made the following observation in his letter to the Times about Lady Justice Rafferty’s speech:
“Sir. It is surely sound advice from Lady Justice Rafferty for lawyers to avoid grounds of appeal that have become too ‘rambling, waffling and warbling’ as such verbosity must invariably lead to longer sentences.”
On December 17, Francis Lambert had the following recollection:
“I am reminded of the story of a prolix barrister who, on being told by the judge that what he had been saying for the past 10 minutes had merely gone in one ear and out the other, retorted ‘Nothing to stop it M’lud!’”
Back to the subject of pearls of wisdom and some true pearls will be flying off the bookshelves today, when Dr Mark Friston, Barrister and Deputy Costs Judge, launches the third edition of his magnificent book Friston On Costs.
The third work is lengthy at 2,092 pages, but priced at £175 it is an absolute bargain, and in the premier league of the most thorough, clear and articulate works about civil costs on the market. As such, it is an essential adjunct to Costs Law Reports for those who practise in this area of the law.
A very happy New Year to all our subscribers. The ensuing months will reveal the extent to which our predictions prove correct!
The headnotes and full texts of the cases below are available to online subscribers at www.costslawreports.co.uk. Follow Costs Law Reports on Twitter to be notified of new cases as soon as they are published.
New cases this month
Griffin v Higgs and Others  5 Costs LR 1061: Appropriate costs order in proceedings involving the costs of executors and trustees: whether such costs should be payable out of the deceased’s estate.
Hosking and Another v Apax Partners LLP and Others  5 Costs LR 1125: Discontinuance under CPR Part 38 four days into a six week trial: whether costs should be paid on the standard or indemnity basis: level of interim payment under CPR 44.2(8).
Macrae v Herefordshire Council  6 Costs LO 695: Proportionality under the test in Lownds v Home Office: whether leading counsel’s fees in the Court of Appeal, which had been reasonably incurred, had also been necessarily incurred.
Nicholls v Nicholls  6 Costs LO 705: Costs of proceedings involving the administration of an estate under CPR 46.3: whether payable out of the estate and the consequences of the claimant’s unwillingness to engage in mediation.
JP Finnegan v Spiers t/a Frank Spiers Licensed Conveyancers  6 Costs LO 729: Part 36 offers: whether a payment on account of the receiving party’s costs can be ordered under the rule following acceptance of the paying party’s offer.
Bentley Design Consultants Ltd v Sansom  6 Costs LO 743: Part 36: factors to apply in deciding the extent to which an acceptance of a Part 36 offer covered the whole of the claim or merely part of it.
Lewis Thermal Ltd v Cleveland Cable Company Ltd  6 Costs LO 759: Security for costs under CPR 25: variation of order to provide for security to be given by a Deed of Indemnity from an ATE insurer.
BMCE Bank International plc v Phoenix Commodities Pvt Ltd and Another  6 Costs LO 767: Costs budgeting: failure to file a budget in compliance with CPR 3.13; budget treated as comprising only applicable court fees under CPR 3.14; relief from sanctions CPR 3.9.
R (Khan) v Director of Legal Aid Casework  6 Costs LO 799: Power of the Director of Legal Aid to make a determination under the Criminal Legal Aid (Contribution Orders) Regulations 2013 requiring a defendant to make a capital contributions order payable out of disposable specified capital.
Britned Development Ltd v ABB AB and Another  6 Costs LO 807: Part 36: costs consequences following the withdrawal of a Part 36 offer where subsequently a party had failed to beat that offer at trial.
Other recent cases
Ayton v RSM Bentley Jennison and Others  5 Costs LR 915: Pre-action costs: whether recoverable where the full amount of the claim has been tendered pre-issue but without costs: costs consequences under CPR 36.17(4) where own offer beaten: whether just to disapply the rule.
R (The Law Society) v The Lord Chancellor  5 Costs LR 937: Judicial review: legality of the Lord Chancellor’s decision to reduce the amount payable in fees to litigators under the Litigators’ Graduated Fee Scheme implemented under the Criminal Legal Aid (Remuneration) (Amendment) Regulations 2017.
Welsh v Walsall Healthcare NHS Trust  5 Costs LR 1025: CPR Part 44, issue-based costs orders.
Culliford and Another v Thorpe  5 Costs LR 1039: Jurisdiction to order a payment on account of costs under CPR 44.2(8) after an order for costs has been made, drawn up and sealed.
Conversant Wireless Licensing SARL v Huawei Technologies Co Ltd and Others  5 Costs LR 1049: Principles to apply on making a costs order where the parties have agreed the terms of an application but not the liability for costs: appropriate level of interim payment under CPR 44.2(8).
Devoy-Williams and Another v Hugh Cartwright & Amin  5 Costs LR 1105: Part 36 offers: whether an offer, in which the time for acceptance had yet to expire, could be accepted after the action had been struck out for failure to comply with an unless order.
Gill v Heer Manak Solicitors  5 Costs LR 1165: Solicitors’ retainers: period of notice to be given to be given to the client in order for termination of the retainer to be valid.
Yirenki v Ministry of Defence  5 Costs LR 1177: Costs budgeting under Part II of CPR 3: principles to apply when fixing budgets and making costs management orders under CPR 3.15(2).
Slade (t/a Richard Slade and Company) v Boodia and Another  5 Costs LR 1185: Status of solicitors’ bills under the Solicitors Act 1974: whether bills containing only profit costs or disbursements, but not both, can nonetheless be interim “statute” bills.