ACL general meeting to be held next week
Members are reminded that a general meeting of the ACL will be held next Wednesday, February 21, at 4.30pm at De Vere Holborn Bars, 138-142 Holborn, London EC1N 2SW.
It will consider whether the CLSB should be completely severed from the ACL to ensure full separation of regulatory and representative activities, and whether to open up membership of the representative arm to all costs professionals under the umbrella of the Association of Costs Lawyers and Practitioners.
Please note that emailed voting/proxy forms will not be accepted. Proxy Forms can be sent to the office or handed to the proxy for them to take to the meeting. If a member is using the form to vote or wants to send their proxy form to the ACL, it must be received by 2pm on February 19.
For any queries, email enquiries@costslawyer.co.uk
Employment tribunal wrong in approach to costs
An employment tribunal erred in law by placing the burden on an applicant to satisfy it that costs should not be ordered under rule 76 of the Employment Tribunal Rules, the president of the Employment Appeal Tribunal has ruled.
Mrs Justice Simler said the tribunal had also been wrong to deal with this question before considering whether the respondent had satisfied it that there was unreasonable conduct of some kind within rule 76 to trigger the costs jurisdiction.
In Haydar v Pennine Acute NHS Trust [2017] UKEAT 0141_17_1212, she said: “The burden of proof ought not to play a significant part in the decision whether or not to order costs but, on any view, it was not for the claimant to satisfy the tribunal that no costs should be ordered.
“Rather, as both parties agree, once the respondent had satisfied the tribunal that there was jurisdiction to award costs, it was for the tribunal to satisfy itself, in light of its conclusion that unreasonable conduct of some kind had been established, whether a costs order was appropriate in all the circumstances having regard to any factors relevant to the exercise of that discretion. That was not the employment tribunal’s approach here.”
The case was remitted to the same tribunal to reconsider its decision.
Court orders interest at 4% above base on ‘old’ CFA
Where the defendants in a personal injury action had done almost nothing to seek a compromise after rejecting the claimant’s part 36 offer, but the claimant’s solicitors were acting under an old-style conditional fee agreement, 4% above base rate was the appropriate rate of interest payable under rule 36.17(4)(c) on indemnity costs ordered against the defendants after they lost on liability.
According to a Lawtel report of Bruma v Hasson and Anor before Judge Curran QC, the defendants argued that 2% above base rate should be the maximum interest rate: “Given that the conventional award in such cases was 4% above base, in the instant case it should be halved as the claimant’s solicitors were acting under an old-style conditional fee agreement, which meant that neither the claimant nor her solicitors would be out of pocket at all as they would receive double the costs that would otherwise be awarded.”
The claimant submitted that interest should be awarded at the highest rate, namely 10% above base rate, having made a reasonable part 36 offer which was rejected and which she then significantly bettered at trial, “having suffered a year of anxiety waiting for the outcome”.
The judge held that, in those circumstances, it was difficult to say that the defendants “had acted entirely reasonably” in not accepting the offer. The report said: “A significant part of the part 36 regime was to promote compromise. There was no suggestion that the claimant or her representatives had acted unreasonably. In light of the existence of the conditional fee agreement, the appropriate rate of interest was 4% above base rate.”