Dispute resolution: recovering costs before allocation

first_img Masood Ahmed is senior law lecturer at Birmingham City University Is a costs judge entitled to take the view that a matter would have been allocated to the small claims track (and therefore requiring the paying party to pay costs on the small claims track basis) where a case is settled before allocation and the consent order provides for costs to be paid on the standard basis? This was the bone of contention in the Court of Appeal case of O’Beirne v Hudson [2010] EWCA Civ 52 (see also Drew v Whitbread [2010] EWCA Civ 53, which raised similar issues). A personal injury matter was settled before allocation for £1119.06. The consent order, which recorded the settlement, stated: ‘The defendant do pay the claimant’s reasonable costs and disbursements on the standard basis, to be subject to detailed assessment if not agreed.’ The defendants subsequently ­disputed the claimant’s bill of costs (which appeared to exceed the fixed costs allowed under part 45 of the Civil Procedure Rules), and argued that if the matter had proceeded to ­allocation it would have been allocated to the small claims track and that costs should be assessed on the small claims basis (that is, fixed costs under part 27 of the CPR). The claimant, ­however, contended that the terms of the consent order were such as to preclude the application of CPR 27 and 45. It was accepted by both parties that if the matter were allocated to the small claims track, only fixed costs would be recoverable and nothing would be allowed for the use of lawyers, as it was clear that small claims track claims are intended to be conducted without lawyers. The claimant’s argument was accepted by the district judge who held that the wording of the consent order precluded the matter being ­limited to the small claims track and the effect of the wording of the order would be to fetter her discretion. On appeal to the High Court, Judge Stephen Stewart QC found for the defendant. He confirmed that a costs judge had no power to vary a costs order which had already been made. However, the judge observed that the question was not whether the original costs order could be varied but whether the district judge was correct in concluding that the order precluded the court in its discretion in assessing costs on the small claims basis. He then proceeded to consider the actual wording of the order against the backdrop of the involvement of the parties’ solicitors and the ‘factual matrix’ of the case and held: ‘There is nothing… in the word ‘reasonable’… standard basis, or in the words ‘detailed assessment’, which takes away from the defendant their right to argue that costs should be assessed by reference to the small claims track.’ The judge concluded that the defendant’s right to argue that the matter should be assessed on the small claims basis was a matter which remained within the discretion of the court when the question of costs comes before the court for assessment. The claimant made a further appeal. The appeal court confirmed that in making an assessment, a costs judge is entitled to take into account all of the circumstances of the case (CPR rule 44.5(1)), including the fact that the case would almost certainly have been allocated to a small claims track if it had proceeded to the allocation stage. Lord Justice Waller stated: ‘In so doing she would have regard to what could or could not be recovered if the case had been so ­allocated.’ The appeal court, in dismissing the claimant’s appeal, held that a costs judge could not vary a costs order. But he could exercise his discretion when considering whether costs were ­reasonably incurred, and thus whether it is reasonable for the paying party to pay more than would have been recoverable in a case that should have been allocated to the small claims track. Therefore, a costs judge must question whether, for example, it is reasonable that the paying party should pay the costs of a lawyer. Waller LJ argued that a costs judge would not be bound to allow the costs as per a case on the small claims track, but that this would still be a highly material circumstance in considering what, by way of assessment, should be payable. O’Beirne is a significant authority on the issue of costs. The fact that the value of a claim means that a case is destined to be allocated to the small claims track (or any other track) does not necessarily mean that costs will be assessed on the basis of that track if the matter is settled before allocation. The court will always maintain its discretion when assessing costs as provided to it under the CPR. Furthermore, the mere fact that the parties have used specific wording (and in many occasions standard wording as those used in O’Beirne) in a consent order will not assist the court when it is assessing costs. The court will exercise its discretion and take into account all the circumstances of the particular case. Therefore, parties should throughout litigation revisit their costs position and ensure that the costs which are being incurred are both reasonable and proportionate for those costs to be recoverable at a later stage. last_img read more

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New sentencing guidance for assault

first_imgThe Sentencing Council has today published new guidance to judges and magistrates for assault offences. It aims to ensure a more consistent and proportionate approach to sentencing, with offenders receiving a sentence that reflects the harm they have caused to their victim and their culpability. The present guidance, according to some judges, puts too much emphasis on premeditation, when the evidence suggests that many assault offences are spontaneous and involve minimum premeditation. The guidance covers a wide range of offences of violence, from causing grievous bodily harm with intent to common assault. It apples to all offenders aged 18 and over, and for the first time will be applicable to both the Crown court and magistrates’ court. The council suggests that, under the new regime, there is likely to be an increase in the length of custodial sentences for those who commit the most serious assaults, while the courts will make more use of community sentences for offences at the other end of the spectrum, where little or no physical harm is caused The guidance comes into effect on 13 June this year. Chairman of the Sentencing Council Lord Justice Leveson said: ‘This guideline will increase consistency in sentencing and help ensure offenders receive sentences that accurately reflect the harm they have caused their victim and their culpability. ‘Where serious injury is inflicted, offenders can rightly expect to go to jail, but where very minor or no injuries are caused, sentencers need to apply a proportionate response.’ The new guidance can be found on the Sentencing Council website.last_img read more

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Keep it simple

first_img John Wilson, Wilsons Solicitors, Leeds PR 2.3(1) says a claim form is a statement of case. 22.1(1) says a statement of case must be verified by a statement of truth. Easy really.last_img

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The City can capitalise further on its reputation for legal services

first_img Stuart Popham is chairman of TheCityUK When I heard Kenneth Clarke say: ‘The City of London is a legal centre – not just a financial one,’ I raised a cheer. He was speaking at my alma mater, Clifford Chance, at an event arranged by the TheCityUK, with the support of the Law Society and the Bar Council. Earlier, he had said: ‘Law as an industry has in the past sometimes felt itself to be something of an overlooked Cinderella in its treatment by government.’ This is quite so. While the politicians and much of the City have been debating the causes of global financial crisis and the banking review, a world-class and export-led home-grown success story was waiting patiently to be told. At the latest count, the legal sector is worth £23.1bn or 1.8% of the UK’s gross domestic product. For those interested in the balance of payments, it is worth a net £3.2bn in exports to the UK – nearly three times more than a decade earlier. This is a major contribution to the nation’s coffers; one which the government has the duty to nurture. I know from my own experience how financial services centres can only thrive if they have the right legal framework to resolve commercial disputes. We are fortunate that the UK, and London in particular, already has this framework and the people to make it a success. One of TheCityUK’s roles is to demonstrate the indivisibility of the mechanisms that make this success: the range of languages, professions, and experts to provide tailored services across the dispute resolution field. We have an envied reputation for the fair, effective and transparent resolution of international commercial disputes. The lord chancellor also told the 100-strong invited audience: ‘I am prepared to wear out much shoe leather promoting the UK as lawyer and adviser to the world, particularly in areas where protectionist regulations remain an impediment.’ This too was a welcome commitment, and one where a true public-private partnership is essential if we are to make the most of our competitive advantages. The industry’s participation and direction, through the recently launched Action Plan, will be vital to identify and break down trade barriers. As an industry, the legal services sector should welcome the commitment to involve representatives from its professional bodies in visits and trade delegations, including prime ministerial missions and the forthcoming visit to India by the lord chancellor. Crucially, there was the understanding that worldwide competition for legal services is set to intensify over the coming decade. In this context, Clarke’s comment on the plan to introduce a European contract law was forthright. It is an ‘Esperanto fallacy’, he said, ‘a utopian belief that a perceived problem of diversity of languages can be solved by creating an extra one’. However, this will be one to watch. There was one topic not touched on in the speech: immigration. International players must be able to plan confidently to use the UK as a base for their global operations. This, along with the visa regime, will be part of the ongoing dialogue between the sector, the business-focused ministries and the Home Office. Next, in October, we will have the ‘Unlocking Disputes’ campaign. This will be launched to complement the opening of the new courts complex at the Rolls Building. It is an industry-led initiative to promote the litigation, arbitration and mediation services available here. It will also be used to brief the Foreign Office and UKTI staff in Britain’s embassies and high commissions who are on the front line of the government’s new ‘commercial diplomacy’. Susan Haird, the deputy chief executive of UKTI, spoke on this aspect of her department’s work during the panel session at the event. Lastly, the Rolls Building itself will bring together the combined specialist judicial expertise of the High Court in relation to financial, business and property disputes. It will be home to the largest concentration of judicial expertise of that type anywhere in the world. We know nobody comes here for the weather or to do business in a particular building because of its shiny new furniture, but the new court is the physical embodiment of a commitment to promote the legal services sector, and the industry’s ambition to make London the venue of choice for resolving global commercial disputes. last_img read more

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A difference of emphasis

first_imgTo continue enjoying Building.co.uk, sign up for free guest accessExisting subscriber? LOGIN Stay at the forefront of thought leadership with news and analysis from award-winning journalists. Enjoy company features, CEO interviews, architectural reviews, technical project know-how and the latest innovations.Limited access to building.co.ukBreaking industry news as it happensBreaking, daily and weekly e-newsletters Get your free guest access  SIGN UP TODAY Subscribe now for unlimited access Subscribe to Building today and you will benefit from:Unlimited access to all stories including expert analysis and comment from industry leadersOur league tables, cost models and economics dataOur online archive of over 10,000 articlesBuilding magazine digital editionsBuilding magazine print editionsPrinted/digital supplementsSubscribe now for unlimited access.View our subscription options and join our communitylast_img read more

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Building buys a pancake… for Pringle Brandon

first_imgStay at the forefront of thought leadership with news and analysis from award-winning journalists. Enjoy company features, CEO interviews, architectural reviews, technical project know-how and the latest innovations.Limited access to building.co.ukBreaking industry news as it happensBreaking, daily and weekly e-newsletters Subscribe now for unlimited access Subscribe to Building today and you will benefit from:Unlimited access to all stories including expert analysis and comment from industry leadersOur league tables, cost models and economics dataOur online archive of over 10,000 articlesBuilding magazine digital editionsBuilding magazine print editionsPrinted/digital supplementsSubscribe now for unlimited access.View our subscription options and join our community Get your free guest access  SIGN UP TODAY To continue enjoying Building.co.uk, sign up for free guest accessExisting subscriber? LOGINlast_img read more

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A question of discipline

first_imgSubscribe to Building today and you will benefit from:Unlimited access to all stories including expert analysis and comment from industry leadersOur league tables, cost models and economics dataOur online archive of over 10,000 articlesBuilding magazine digital editionsBuilding magazine print editionsPrinted/digital supplementsSubscribe now for unlimited access.View our subscription options and join our community To continue enjoying Building.co.uk, sign up for free guest accessExisting subscriber? LOGIN Stay at the forefront of thought leadership with news and analysis from award-winning journalists. Enjoy company features, CEO interviews, architectural reviews, technical project know-how and the latest innovations.Limited access to building.co.ukBreaking industry news as it happensBreaking, daily and weekly e-newsletters Subscribe now for unlimited access Get your free guest access  SIGN UP TODAYlast_img read more

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Expert determination: A short cut through a swamp

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Mark Underwood: ‘How local sourcing can secure planning for supermarkets’

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Panorama points to earnings pain, but the worst is yet to come

first_imgStay at the forefront of thought leadership with news and analysis from award-winning journalists. Enjoy company features, CEO interviews, architectural reviews, technical project know-how and the latest innovations.Limited access to building.co.ukBreaking industry news as it happensBreaking, daily and weekly e-newsletters Get your free guest access  SIGN UP TODAY Subscribe to Building today and you will benefit from:Unlimited access to all stories including expert analysis and comment from industry leadersOur league tables, cost models and economics dataOur online archive of over 10,000 articlesBuilding magazine digital editionsBuilding magazine print editionsPrinted/digital supplementsSubscribe now for unlimited access.View our subscription options and join our community Subscribe now for unlimited access To continue enjoying Building.co.uk, sign up for free guest accessExisting subscriber? LOGINlast_img read more

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