News in brief – 02.11.2017

CLSB announces training course suspension

The Costs Lawyer Standards Board has made an unexpected announcement that it has suspended further intake for the Costs Lawyer qualification.

In a newsletter, it said: “The CLSB has taken the difficult decision to suspend any further intake onto the current three-year Costs Lawyer qualification. This decision was based on ACL Training having reported a significant fall in the number of trainees over the last two academic years, making future provision of the qualification uncertain. With such uncertainty, it was only right this action be taken. The ACL Chair has given the CLSB a verbal assurance that ACL Training is in a financial position to honour its contractual obligations to trainees currently enrolled on academic years 1, 2 and 3. The CLSB is grateful for that assurance. The CLSB will now focus on other means of entry into the profession e.g. Costs Lawyer competence test, apprenticeship, thus assuring standards expected of a regulated profession are met.” 

In a statement, the ACL Council – which had no warning of the move – said: “The Council has noted and recognises member concerns over the recent CLSB newsletter regarding an alternative gateway into the profession. We will be discussing this and any appropriate response at the next Council meeting scheduled for November 16. In the interim, we would welcome member comment.”

LSB approves Costs Lawyer practising fee

The Legal Services Board (LSB) has approved the decision of the Costs Lawyer Standards Board to hold the practising fee at £250. All 27 respondents to the latter’s survey on the fee backed the decision, including the ACL.

In his letter confirming the decision, LSB chief executive Neil Buckley said: “We note that once again you have not had to draw on reserves to meet operating costs and that the current reserves remain at 80% of operating costs. In the past, the CLSB has indicated that its target is to achieve reserves of 100% of operating costs by the end of 2019. It would be helpful if the application for the 2019 practising certificate fee could explain in more detail how this will be achieved.”


CFAs do not enable litigation poker, says High Court

The High Court has rejected the argument that a claimant was using a conditional fee agreement (CFA) and after-the-event (ATE) insurance to play “some game of high stakes poker”.

It was one of the strands in the defence to a professional negligence claim by a well-known firm of architects in Riva Properties Ltd and Ors v Foster + Partners Ltd [2017] EWHC 2574 (TCC).

The judge recounted that in the defendant’s opening submissions, it said: “Mr Dhanoa [owner of the claimant companies] has no case at all. Instead, having instructed solicitors on a CFA and taken out ATE insurance, he is playing with other people’s money trying to bluff his way through the Court as if civil litigation were some game of high stakes poker. At trial, F+P will expose Mr Dhanoa’s claim for the bluff that it is.”

Mr Justice Fraser had little truck with this. “If [CFAs and ATE insurance] are legal and acceptable mechanisms which Parliament has decided should be available to fund civil litigation – which they are, and which Parliament has – then the fact that a claimant (or his companies) avails himself of these mechanisms to bring proceedings does not, in my judgment, mean that they are to be characterised as playing with other people’s money or bluffing, or treating litigation as though it were a game.”

The claimant won, and was awarded £3.6m in damages.


Court of Appeal: No need to plead ‘fundamental dishonesty’ to disapply QOCS

A defendant does not have to specifically plead fundamental dishonesty for a court to find that qualified one-way costs shifting (QOCS) should be disapplied, the Court of Appeal has ruled in Howlett v Davies and Anr [2017] EWCA Civ 1696.

Lord Justice Newey said that, in the case before the court, the doubts of the defendant insurer about the claimants’ honesty were clear enough in its pleadings so that they were not ambushed at trial, while the honesty of their evidence and case was “adequately explored during the oral evidence”.

He said the mere fact that the opposing party has not alleged dishonesty in his pleadings “will not necessarily bar a judge from finding a witness to have been lying”.

Further, he said, where an insurer, as Ageas did here, has not put forward a substantive case of fraud but set out facts from which it invited the judge to draw the inference that the claimant had not in fact suffered the injuries he asserted, “it must be open to the trial judge… to state in his judgment… that the alleged accident did not happen or that the claimant was not present.

“The key question in such a case would be whether the claimant had been given adequate warning of, and a proper opportunity to deal with, the possibility of such a conclusion and the matters leading the judge to it rather than whether the insurer had positively alleged fraud in its defence.”

Similarly, an insurer could invoke QOCS regardless of whether there was any reference to fundamental dishonesty in its pleadings.


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Costs News
Published date
02 Nov 2017

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