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Last call for the Costs Law and Practice Conference 2016 and swearing in court

In one sense, the last year has proved the easiest that the Co-Editors have experienced since they took over from founder Editors, Peter Rogers and Michael Bacon. In another, it has been the hardest. The reason? In years gone by, finding cases about costs proved difficult as there were relatively few. This year, the number of costs judgments being handed down following the implementation of the Jackson reforms has put us in a quandary about which to include, such has been the significant number of costs cases from which we have been able to choose. In view of this, we think that the Costs Law and Practice Conference to be held on the 28th of this month will be the most important for practitioners to attend since we presented the first conference three years ago.

This year’s line-up of speakers includes the Senior Costs Judge, Andrew Gordon-Saker, who will bring delegates up to date with all that is happening in the Senior Courts Costs Office, as well as doing a bit of crystal ball gazing about what developments can be expected in costs over the next twelve months. There is no one better placed to do so than Master Gordon-Saker since he is a prominent member of the Rule Committee as well as having been the judge responsible for delivering some groundbreaking decisions this year (remember BNM v MGN?). Also speaking will be Nicholas Bacon QC, who has appeared in most of the important costs cases and appeals over the past two decades. In that capacity he will be able to bring delegates up to date with the latest cases and those we can expect to be of importance in 2017 (EMW v Halborg and Budana v Leeds Teaching Hospitals NHS Trust already listed in the Court of Appeal). Alexander Hutton QC, the chairman of the Hutton Committee in charge of drafting the new electronic bill, will be apprising the Conference about the changes being made to it and update us about when the bill will become compulsory. Master Jennifer James, who has finally broken the gender mould on the costs judges’ corridor, will bring her experience to bear in developments in costs in the Court of Protection and the new costs regime in that area. Registrar Sally Barber, who has been a Registrar in Bankruptcy since 2009, is a member of the Insolvency Rules Committee and will bring the Conference up to date with developments in insolvency law, now that the exemption for success fees and insurance premiums under conditional fee agreements has been scrapped. Last but certainly not least, and who will, in fact, open the conference, is the Honourable Mr Justice Stuart-Smith; we shall be delighted to welcome him as this year’s keynote speaker. Sir Jeremy needs no introduction; we have already published four of his decisions about costs, including costs budgeting, so we have every expectation that the Conference will hang upon his every word.

Anyone who has yet to buy a ticket, but is wavering about whether to do so, can be confident that their money will best be left in the bank or put on the 2.30 at Newmarket if they can answer the following questions.

  • Costs budgeting: at the costs case management conference, the court’s attention is drawn to the enormous incurred costs amassed already by your opponent. Any need to challenge them, or can you keep your powder dry until the inevitable detailed assessment when you can take them to bits on the usual grounds of challenge, including proportionality?
  • Conditional fee agreements (1): hats in the air, the champagne flows, the case has been won with costs against the second defendant. The CFA identifies the first defendant against whom you discontinued the claim (by agreement with no costs penalty), but not the second defendant against whom you succeeded. Anything to worry about on detailed assessment and would your answer be different if the CFA had not named any tortfeasor at all, rather than some but not others?
  • Conditional fee agreements (2): another spanking victory, this time against the one and only defendant so no identity problems here. But what about the work covered? The CFA is silent about much of the work done. Best not to take a chance on detailed assessment and rectify the CFA in advance of the hearing? Any problems about doing that?
  • Conditional fee agreements (3): OldCo & Partners has hived off its book of CFAs having given up personal injury litigation as being uneconomic after the Jackson reforms, and NewCo & Partners has paid good money for the cases because the CFAs were all made before 1 April 2013 and big success fees and ATE premiums can be claimed. What should you as paying party be looking for to be certain that OldCo and NewCo created an effective assignment? Would your answer be different if you accept that the assignment was valid, but one of the claimants, who died after 1 April 2013, lost the case and you are now trying to recover your costs from his estate, to which the riposte has been “QOCS off”.
  • Proportionality; the claim was successful, but an expert witness blew up when giving evidence so instead of recovering £150,000 damages, the award was just £15,000. The trial overran and costs claimed on assessment are £100,000 against an approved budget of £75,000. Work was done before 1 April 2013, but the claim was issued on 2 April 2013. The defendant’s Part 36 offer was £4,999 made on 9 July 2014. What, if any, proportionality arguments can be raised and will the receiving party be held to the costs budget, the judge having refused to increase it, on being asked to do so at the end of the trial. Would your answer be different if the defendant had not made any Part 36 offer at all?
  • Solicitors Act 1974: Mr Trickey, who has always been a difficult client, wants to have your costs assessed under s 70 of the Act, but he has lost his argument that the interim bills he received were on account of a final bill to be delivered at the end of the case. Accordingly, Mr Trickey’s application is now too late. Undeterred, he is now arguing under s 68 that the bills were not bills at all because they did not contain enough narrative to enable him to take advice about whether they were fair and reasonable. As the s 70 application has been dismissed, do you now have any cause for concern under s 68?

We don’t want answers on a postcard, thank you. Instead, we would very much like to see you at the Conference, when our speakers will address them and you will also have an opportunity to do so at the panel sessions.

To swear in court (other than when taking the oath) or not to swear, that is the question, but what is the answer?

When cursed in court, should the judge curse back? Those of a delicate disposition please turn away now. There has just been a case in point.

The facts

In early August at Chelmsford Crown Court, the following exchange took place:

Defendant from the dock to the judge, Judge Lynch: “You are a bit of a c**t.”

Judge to the defendant: “You are a bit of a c**t yourself. Being offensive to me does not help.”

Defendant to judge: “ Go f**k yourself”.

Judge to defendant: “You too”.

Defendant (following a nazi salute): “Sieg Heil.”

Judge to defendant: “We are all really impressed. Take him down.”

The submissions

“Three cheers for a judge who sounds like normal people” opined John Cooper QC, writing the Thunderer column in the Times on 12 August 2016. Pointing out that the judicial powers have been discouraging judges from using Latin in the courts, the author wrote that no one should be in any doubt that the judge’s approach had been a refreshing example of a judge making herself relevant to a society that is no longer impressed by the tone of vowels:

“I would have been more critical of the judge if she had slipped out an ‘ex turpi causa’ [of an illegal act, there can be no cause of action] rather than expressing herself in non-pompous accessible language. … Authority and respect will not be lost through the odd expletive. It will be lost, though, through pomposity and a perception of irrelevance. I am a signed up member of the Lynch mob – and proud to be so.”

Au contraire, wrote several other correspondents to our oldest newspaper. “John Cooper is quite wrong to champion the use of four letter words,” wrote Edmund Gray of Oxford:

“Use of such words coarsens the language and the user, and is also a component of the aggressive language now so prevalent, particularly on the internet and in the road rage that is often the prelude to physical violence… Judges of all people should restrain themselves from indulging in it. The Times is right to veil such words with asterisks.”

Asterisks? Not so, replied His Honour Judge Anthony Tibber. “All readers know what the veiled words are: what purpose is served in veiling them?”

Lots, wrote Dr Joseph Kearney of Letchworth. “His Honour Anthony Tibber is wrong. Not all readers know what the veiled words are; in fact, the older I get, the fewer I can work out, despite close study.”

Richard Bailey of Ryde agreed. “A recent report in The Times,” he wrote, “used ‘d*******’. Try as I might, I failed to work it out. Another newspaper came to my aid by printing it as ‘d***head’.”

Restraint and subtlety is far better than responding robustly to outbursts, wrote Judge Barrington Black when continuing the asterisks debate. That had never been better demonstrated than by Judge Viscount Colville of Culross QC, who after imposing sentence, was met from the dock with the same four letter word which the defendant had used to address Judge Lynch.

“Young man,” he replied, “when you are eventually released, it could be that we meet socially and if you choose to address me by my title, do remember please, that there is an ‘o’ between the ‘c’ and the ‘u’.”

There is a distinction to be drawn, however, between subtlety and humour. Jokes are best left to the jokers. Judges who try to lighten the atmosphere can find that their well-meaning intentions backfire badly. Remember Mr Justice Singer who mentioned that Sheikh Khalid Ben Abdfullah Rashid Alfawaz, a party in a matrimonial finance case he was hearing, might choose to “depart on his flying carpet” to escape paying costs, that he should be available to attend hearings “at this the fast-free time of year”, that he should be in court “to see that no stone is left unturned, every grain of sand is sifted” and that his evidence had been “a bit gelatinous… like Turkish Delight”? The Court of Appeal on giving reasons following the judge’s refusal to recuse himself, said that each such remark could not be seen simply as “colourful language” as the judge had sought to excuse them, but to be “mocking of the third respondent for his status as a Sheikh and/or his Saudi nationality and/or his ethnic origins and/or his Muslim faith”. So for a bit of misplaced humour, Mr Justice Singer was obliged to stand down.

A combination of subtlety, wit and humour may work, however. Regrettably, the identity of the judge in the following story has been lost to the editors, but the tale goes like this: the famous advocate and Conservative MP William (Billy) Rees-Davies QC was conducting the defence of his client in a manner which had led the defendant in the dock to gesticulate madly in an unsuccessful attempt to persuade his barrister to change course. His instructions were then committed to paper. Counsel interrupted his submissions and said to the judge – “My Lord, a moment. I have a billet-doux,” to which the judge replied, “Mr Rees-Davies, when you come to read it, I think you will find it is a Billy-Don’t!”

Quick-witted indeed, but according to David Pannick QC, when concluding the swearing debate in his article in the Times on September 1, Judge Lynch had displayed no such wit. Her outburst, he said, was “crude, witless and injudicious”. Whilst judges regularly have to deal in court with the most objectionable people, the occasional loss of patience and letting rip in an injudicious manner, are “always to be deprecated. The judicial process cannot retain respect if judges abandon their dignity by descending into the gutter.”

Disposal

Whatever your opinion, two things are clear. First, all judges have to put up with abuse from defendants in criminal cases and disappointed litigants in civil cases which they would not get away with outside the court, and dealing with it and them is simply part of the job. Second, all hearings are now tape-recorded and any riposte from the bench which borders on the injudicious, will look and sound awful when the day’s events are transcribed and the exchange of views is read out in another court, on another day, before a different tribunal.

In our case, Judge Lynch sent the defendant to prison for 18 months for his ninth breach of an antisocial behaviour order by making racist comments.

The judge’s sentence? That will be decided following an investigation by the Judicial Conduct Investigations Office in accordance with the Judicial Conduct (Judicial and other office holders) Rules 2014. Wherever your sympathies lie, David Pannick’s suggestion deserves consideration:

“A sufficient sanction would be for the Lord Chief Justice and the Lord Chancellor to order that in future, Judge Lynch should accept (though not repeat in court) the wise advice attributed to US President Dwight D. Eisenhower: ‘Never get in a pissing contest with a skunk’.”

Apologies for the language. Normal service will be resumed at the Conference.

The headnotes and full texts of the cases below are available to online subscribers at www.costslawreports.co.uk.

NEW! Costs Law Reports 2016/4

Patterson v Cape Darlington and Others [2016] 4 Costs LR 651: “Local solicitor”: reasonableness of the instruction of London solicitors in an asbestosis claim handed down on 15 June 2001, but hitherto unreported.

Alpha Rocks Solicitors v Alade [2016] 4 Costs LR 657: Claim by solicitors against its former client on bills delivered for unpaid fees of £171,708.06, the action having been restored by the Court of Appeal (see [2015] 4 Costs LO 483), following its striking out (see [2014] 6 Costs LR 1039).

Campbell v Campbell [2016] 4 Costs LR 687: Litigants in person and the provision of “legal services” under CPR 46.5(3)(b): whether services provided by a lawyer qualified in another jurisdiction constitute “legal services” and accordingly are recoverable as costs were reasonably provided in proceedings in England and Wales.

Various Claimants v MGN Ltd [2016] 4 Costs LR 695: Costs managed litigation: the extent to which costs budgeting should encompass additional liabilities (success fees and ATE insurance premiums) claimed under a conditional fee agreement in privacy proceedings.

Novus Aviation Ltd v Alubaf Arab International Bank BSC(c) [2016] 4 Costs LR 705: Consequences of a Part 36 offer after “Brexit”: whether a party who has beaten its own Part 36 offer should benefit from the consequences of CPR 36.14(3)(a)–(d) where the reason for doing so was wholly attributable to fluctuation in the exchange rate between the date of the offer and the judgment.

National Bank Trust v Yurov and Others [2016] 4 Costs LR 717: Appropriate order for costs following the failure by a claimant to disclose material facts on an application for a freezing injunction, in circumstances where it had been successful in obtaining the continuation of the injunction which had originally been granted without notice.

Milanese v Leyton Orient Football Club Ltd [2016] 4 Costs LR 725: CPR 44.2, court's discretion as to costs. The court considered the appropriate order for costs where a claimant had succeeded on only a small part of his claim, and where the counterclaim had been dismissed.

PM Project Services Ltd v Dairy Crest Ltd [2016] 4 Costs LR 735: Costs thrown away; inconsistent exhibits references in witness statement as compared to court bundle, resulting in adjournment of application due to insufficient reading time.

Socrates Training Ltd v The Law Society of England and Wales [2016] 4 Costs LR 739: Rule 58 of the Competition Appeal Tribunal Rules 2015; appropriate costs cap where defendant had instructed City of London solicitors and leading counsel.

Kupeli and Others v Kibris Turk Hava Yollari Sirketi (t/a Cyprus Turkish Airlines) and Another [2016] 4 Costs LR 747: CPR 44.2, court's discretion as to costs. The court considered the appropriate order for costs in a multi-party action involving over 800 individuals, where the claimants had not litigated under a group litigation order, but rather by way of joined claims.

Ejiofor t/a Mitchell and Co Solicitors v Legal Ombudsman and Another [2016] 4 Costs LR 759: Contingency fee agreement; complaint by interested party regarding circumstances surrounding the making of the contingency fee agreement and/or adequate advice as to its terms and consequences.

Cooke v Dunbar Assets plc [2016] 4 Costs LR 781: Rule 6.224(1) of the Insolvency Rules 1986, cost and expense of bankruptcy; unsuccessful appeal against bankruptcy order; whether unsuccessful appellant should be personally ordered to pay costs of appeal as a liability outside of the bankruptcy.

Costs and Fees Encyclopaedia Updating

The Civil Procedure (Amendment No. 2) Rules 2016 (SI 2016/707) amend Part 3 and Part 46 of the Civil Procedure Rules 1998, to implement ss 88 and 89 of the Criminal Justice and Courts Act 2015, adding provision for judicial review costs capping orders. Updated pages are now available for printing out and adding to your Costs and Fees Encyclopaedia: Pages 2–3, 37–38, 43–44

The Criminal Procedure (Amendment No. 2) Rules 2016 (SI 2016/705) remove the need for representations to be in written form from rule 45.6 to 45.11 of the Criminal Procedure Rules 2015, with effect from 3 October 2016. Updated pages: Pages 195–201

The Court of Appeal and Upper Tribunal (Lands Chamber) Fees (Amendment) Order 2016 (SI 2016/434) increases fees in Schedule 1 to the Civil Proceedings Fees Order 2008, and substitutes a new Schedule of fees into the Upper Tribunal (Lands Chamber) Fees Order 2009, both with effect from 18 April 2016. Updated pages: Pages 242–243 and 406–407

The Insolvency Proceedings (Fees) Order 2016 (SI 2016/692) replaces the Insolvency Proceedings (Fees) Order 2004 with effect from 21 July 2016. Updated pages: Pages 354–359

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