The New Bill is now mandatory
A unique taste of High Summer has taken its toll on the preparation of this month’s Bulletin. Anticipating the usual soggy bank holiday weekend, which enables headnotes to be written whilst lawnmowers remain laid up in garden sheds, this year we experienced a week of unbroken sunshine, so all those gardening chores which normally fall victim to soft, refreshing bank holiday rain took precedence. Nonetheless, back in the courts, the Ministry of Justice has announced that the fixed recoverable costs regime will be extended to include holiday sickness claims. Proposals are also underway for the Civil Liability Bill, aimed at reforming whiplash related claims, to include a fixed tariff system for pain, suffering and loss of amenity damages and also for raising the small claims limit to £5,000.00 for RTA claims.
It is not only low value claims that are to be addressed. The Civil Liability Bill will also set out new methodology for calculating the discount rate, which will affect cases involving more serious injuries and higher levels of damages.
And from a practical point of view, we have the long-awaited formal introduction of the electronic bill. The rules have already caused some confusion, due to an apparent tension between Practice Direction 47 paragraph 5.A4 and paragraph 5.1A, leading to queries as to whether the electronic bill should be filed at Court at the same time that the Notice of Commencement is served on the paying party.
“Where a bill of costs otherwise falls within paragraph 5.1(a) but work was done both before and after the Transition Date, a party may serve and file either a paper bill or an electronic bill in respect of work done before that date and must serve and file an electronic bill in respect of work done after that date.”
“Whenever electronic bills are served or filed at the court, they must also be served or filed in hard copy, in a manageable paper format as shown in the PDF version of Precedent S. A copy of the full electronic spreadsheet version must at the same time be provided to the paying party and filed at the court by email or other electronic means.”
The reference to “the Transition Date” is to 6 April 2018 when the new bill became mandatory in all courts in England and Wales and the general consensus is that electronic copies of the bill should not be filed at court when the notice of commencement is served; instead it should be filed with the Request for Detailed Assessment.
So much for the theory. On the practical side, several electronic bills have now been assessed on a provisional basis at the Senior Courts Costs Office and the general feedback has been favourable. Although such electronic bills as have been put forward for detailed assessment so far have all settled, there can be no doubt that the “duck” will be broken before long. That said, there is a likelihood of hybrid bills continuing for some time. The rules provide that, where work has been done before 6 April 2018, the bill can be presented on paper, up to that date, but everything undertaken thereafter must be provided in electronic form. Even then, paper bills will not disappear altogether because the requirement to use the electronic format only applies to Part 7 claims, and not at all to litigants in person.
What about the judiciary? A training session attended by deputy costs judges and regional costs judges took place on May 4, when attendees were taken expertly by the permanent costs judges through Precedent S and given full tuition about how to assess an electronic bill. To supplement the session, guidance notes have been prepared “to introduce an assessing judge to some spreadsheet management techniques that may be of assistance in working with an electronic bill on screen”. These notes are under review following feedback from the judges under training and a revised edition will be made available in due course. Meanwhile, the Rule Committee is shortly to consider amendments to the Practice Direction to address teething problems; for example, that if the rate for the incurred costs is changed, it should not automatically be applied to costs that have been subject to costs budgeting, as happens if the model Precedent S is used.
Further details about the Costs Law Reports Conference to be held on 27 September 2018 are set out below. A significant part of the Conference will be devoted to the electronic bill and how the court will carry out a paperless detailed assessment, using the electronic bill which will be displayed on the screens which are now firm fixtures at the SCCO and, it is believed, in the District Registries. We hope that as many subscribers as possible will join us on September 27 for a demonstration of Law in Action, namely a fully argued electronic assessment.
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
- Angel Group Ltd and Others v Davey  2 Costs LR 199: Indemnity basis costs: principles to apply where a party had sold trust property without informing the claimants, involving lack of honesty and failure to disclose information.
- Iraqi Civilians v Ministry of Defence  2 Costs LR 213: Proportion-based costs orders following partial success at trial: appropriate orders where the damages awarded had been considerably less than the amount claimed but no offer of settlement by the defendants had been made under CPR Part 36.
- Marcura Equities FZE and Another v Nisomar Ventures Ltd and Another  2 Costs LR 227: Settlements: appropriate costs order to make consequential thereupon where everything else has been settled.
- Siddiqui v The Chancellor, Masters and Scholars of the University of Oxford  2 Costs LR 247: Qualified one-way costs shifting; applicability of CPR 44.16(2)(b) to disapplying QOCS protection where only part of the claim related to psychiatric injury.
- Herbert v HH Law Ltd  2 Costs LR 261: Solicitors Act s 70 assessments; level of success fee as between solicitor and client under a conditional fee agreements where “informed approval” had not been given: whether payment of an ATE insurance premium was a solicitor’s disbursement, to be excluded from the cash account.
- JMX (a Child by His Mother and Litigation Friend, FMX) v Norfolk and Norwich Hospitals NHS Foundation Trust  2 Costs LR 285: Benefits of CPR 36.17(4)(d); whether the rule was engaged and an additional amount was payable where the case had not been “decided” according to CPR 36.3(e); namely where not all of the issues had been determined.
- Leibson Corporation and Others v TOC Investments Corporation and Others  2 Costs LR 293: Funding arrangements in insolvency proceedings: whether an agreement, an order of the court and rule 4.30(3) of the Insolvency Rules 1986 imposed an obligation on a company to repay monies advanced by a third party to fund the costs of the provisional liquidators.
- Cleveland Bridge UK Ltd v Sarens (UK) Ltd  2 Costs LR 333: Appropriate level of interim payment to allow under CPR 44.2(8) in an action subject to costs budgeting, and the factors applying to determine a reasonable sum in respect of incurred costs.
- Gavin Edmondson Solicitors Ltd v Haven Insurance Company Ltd  2 Costs LR 347: The solicitors’ equitable lien in cases funded under conditional fee agreements to which the Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Cases applies: whether solicitors can exercise an equitable lien over debts arising from settlement agreements where the defendant or his insurer has notice of the CFA but has paid the settlement monies direct to the claimants.
- Ali and Another v Channel 5 Broadcast Ltd  2 Costs LR 373: Part 36; costs consequences of failure to beat defendant’s Part 36 offer; effect of defendant’s failure to file costs budget.
- Williams v The Secretary of State for Business, Energy & Industrial Strategy  2 Costs LR 391: Costs consequences where a claimant fails to follow a pre-action protocol allowing for the recovery of fixed costs and disbursements in a claim which settles before the commencement of proceedings.
- R v MA  2 Costs LR 419: Pages of prosecution evidence: principles to apply on an application for an order for service by the Crown Prosecution Service of “phone material”, not as unused material, but as part of the served prosecution case with numbered PPE for the purposes of the Litigators’ and Advocates’ Graduated Fee Schemes. Free for this month only!
The Costs Law Reports Conference 2018
The unmissable Costs Law Reports Conference 2018, now in its 5th year, takes place on 27 September 2018, at Eversheds Sutherland, 1 Wood Street, London. It is the must-attend training event for costs lawyers and litigators across England and Wales.
- Full Delegate Rate: £275 plus VAT
- Discount Group Bookings (for two or more delegates): £225 plus VAT
Conditional fee agreements: speaker Alexander Hutton QC of Hailsham Chambers who was instructed in Radford v Frade,  1 Costs LR 59, and appeared in the Court of Appeal in Surrey v Barnet and Chase Farm Hospitals NHS Trust  2 Costs LO 141.
Solicitors Act 1974, estimates, statute/final bills: speaker Roger Mallalieu of 4 New Square who was instructed in Vlamaki v Sookias  6 Costs LO 827 and Bloomsbury Law Solicitors v Macpherson  6 Costs LR 1049.
Proportionality and case law update: speaker Nicholas Bacon QC of 4 New Square who appeared successfully for the claimants in the Court of Appeal in Budana v The Leeds Teaching Hospitals NHS Trust  6 Costs LR 1135 about the validity of assignments of conditional fee agreements.
Costs budgeting and best practice at the CCMC: HHJ Richard Roberts of the Central London County Court.
Sanctions in costs and relief from sanctions: Professor Dominic Regan.
The Electronic Bill of Costs: implementation and how it works: Master Colum Leonard, Costs Judge and member of the Hutton Committee. The Electronic Bill of Costs in practice: a mock detailed assessment: Master Jennifer James Costs Judge presiding: advocacy by members of Temple Garden Chambers.
Mediation in costs: the alternative to detailed assessment: Simon Browne QC and Shaman Kapoor conduct a mock costs mediation.
Costs and Fees Encyclopaedia 2018–2019
The Costs & Fees Encyclopaedia brings together all the essential costs, fees, cases, J codes, rules and regulations that costs lawyers and litigators need in a single, portable volume. Updated annually, it is a must have for your bookshelf or briefcase. This 2018–19 edition has been fully reviewed to account for the constant changes to costs & fees in the last 12 months including:
- Legal Services Act 2007 (Claims Management Complaints) (Fees) (Amendment) Regulations 2017
- Pensions Act 2014 (Consequential, Supplementary and Incidental Amendments) Order 2017
- Insolvency Amendment (EU 2015/848) Regulations 2017
- Ecclesiastical Judges, Legal Officers and Others (Fees) Order 2017
- Legal Officers (Annual Fees) Order 2017
- Immigration and Nationality (Fees) (Amendment) Regulations 2017
- Civil Procedure (Amendment No. 2) Rules 2017
- Criminal Legal Aid (Remuneration) (Amendment) Regulations 2018
- Immigration and Nationality (Fees) Regulations 2018
- Civil Procedure (Amendment No. 2) Rules 2018
The comprehensive coverage allied with regular updating makes the book an essential, current source of reference for all costs lawyers and litigators.