1 November 2023
We reported last week on the keynote speech that Mrs Justice Joanna Smith delivered to the ACL London conference. But what else happened?
The day began with a welcome from chair Jack Ridgway, who reported that membership was up after a few years of declining numbers as the council looks to engage Costs Lawyers more.
Later in the day, he awarded the annual Chairman’s Cup to Erica Bedford, who qualified as a Costs Lawyer before transferring to the Bar. She practises from Kings Chambers and is also a deputy costs judge.
Chairman’s Cup: Jack Ridgway hands over cup to Erica Bedford
Mr Ridgway explained how she has long been “a good friend to the Association”, including acting as a moot judge for students, and has also done a lot for the broader profession in the last year, especially in launching the Women in Costs initiative.
Ms Bedford responded by describing the ACL as “a most wonderful association”, and telling delegates that it has done a lot for her – and meant a lot to her – over the years.
Barrister Gordon Exall talks about social media as both a costs issue and a marketing tool
Costs Judge Nagalingam discusses deductions
This year saw the first appearance at the ACL conference by Costs Judge Prinz Nagalingam, who talked about the approval of costs settlements and deductions from damages and how there had been an increase in such cases involving children and protected parties.
He warned practitioners that, even when deductions were contractually allowed, “solicitors should be under no illusion” that the court would just wave them through – the rules required a detailed assessment in most cases and if the child has settled for less than the full value of the claim for whatever reason, such as contributory negligence, “the effect of deduction could be all the more acutely felt”.
The court would want to consider how realistic any settlement on costs with the defendant was and how much could have been achieved at a detailed assessment. Judge Nagalingam urged Costs Lawyers to be “proactive” in explaining why reductions were accepted in inter partes settlement.
At the same time, he said, judges had to be aware that that taking an “overly critical approach” risked access to justice in a post-LASPO world.
On success fees, the judge stressed the importance of Costs Lawyers advising their clients to conduct “proper bespoke risk assessments” like they did before LASPO if they were intending to deduct them from damages.
Costs Judge Rowley speaks to delegates
Delegates then heard from expert speakers on a range of topics – including Costs Judge Rowley’s interactive session taking them through the issues around challenging detail-free disbursements at detailed assessment – as well as breakout sessions on legal aid, Court of Protection costs, and solicitor-own client costs.
Costs Judge James led the breakout session on Court of Protection costs
The traditional closing Q&A session included a question on how the fixed recoverable costs (FRCs) extension would affect the costs landscape.
Council member Victoria Morrison-Hughes was sure that costs expertise was “going to be needed more than ever”, with Costs Lawyers forming part of “strategic” legal teams. Work has also become more complex, she added. “We need to use our skillset to diversify outside the usual costs work.”
Jack Ridgway agreed, noting how a similar debate was had in 2013 after LASPO. For one thing, he suggested there would be “more than enough work” arising from disputes over the new intermediate track.
Q&A panel (l-r): Victoria Morrison-Hughes, Jack Ridgway, Dr Mark Friston, Andrew Roy KC, Craig Ralph
The barristers on the panel were similarly positive. Andrew Roy KC described the FRCs rules as “byzantine” and predicted that “an avalanche” of hearings would result: “It’s good news for Costs Lawyers.”
Craig Ralph told delegates that “the reports of your death are greatly exaggerated”. All fixed costs regimes have escape routes and “the more complex they become, the wider the escape routes become”.
For Dr Mark Friston, FRCs would increase work and said they marked “the end of what Sir Rupert Jackson wanted to achieve”. His concern, however, was the complexity of costs practice and he wondered whether the pendulum that swung between access to justice and containing costs would soon move back towards the former.
An unusual question was how to become an “unpredictable” Costs Lawyer – that is, with a style and tactics not predictable by opponents.
Jack Ridgway argued that it was in fact about “being predictable in a manner that’s controlled by you”, which you could then use that to your advantage. Everyone thinks they know their opponents – the trick was to be in a position “when opponents think they’ve got you but in fact they haven’t”. Mr Ralph agreed; it was about being effective, not unpredictable.
Dr Friston suggested that “the best unpredictable tactic you can take in negotiation is to be reasonable and sensible. Get to the heart of the matter and settle everything”.
Mr Roy cautioned against being “unpredictable for unpredicable’s sake – it’s not a game we’re playing”. But he urged Costs Lawyers always to tailor their approach to the individual case – one size does not fit all.